Citation Nr: 1620828 Decision Date: 05/24/16 Archive Date: 06/02/16 DOCKET NO. 12-07 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for a disability manifested by fatigue. 6. Entitlement to service connection for fibroids. 7. Entitlement to service connection for fibrocystic breasts. 8. Entitlement to a compensable initial rating for left foot hallux valgus. 9. Entitlement to a compensable initial rating for right foot hallux valgus. 10. Entitlement to an increased rating for a scar of the right breast evaluated as noncompensable. 11. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January 1989 to March 1992. These matters come before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. In April 2013, the Veteran testified before a Decision Review Officer in Winston-Salem, North Carolina. A transcript of that hearing is of record. In March 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issues of entitlement to service connection for left and right knee disabilities, a back disability, headaches, fibroids, and fibrocystic breasts, increased rating for a scar of the right breast, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In March 2016, prior to the promulgation of a decision in the appeal, the appellant notified the Board that she wished to withdraw her appeal on the issue of entitlement to a compensable initial rating for left foot hallux valgus. 2. In March 2016, prior to the promulgation of a decision in the appeal, the appellant notified the Board that she wished to withdraw her appeal on the issue of entitlement to a compensable initial rating for right foot hallux valgus. 3. In March 2016, prior to the promulgation of a decision in the appeal, the appellant notified the Board that she wished to withdraw her appeal on the issue of entitlement to service connection for a disability manifested by fatigue. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant for the issue of entitlement to a compensable initial rating for left foot hallux valgus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of an appeal by the appellant for the issue of entitlement to a compensable initial rating for right foot hallux valgus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 3. The criteria for withdrawal of an appeal by the appellant for the issue of entitlement to service connection for disability manifested by fatigue have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 2014). 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 At the March 2016 Travel Board hearing, the Veteran indicated that it was her intent to withdraw the appeals for entitlement to increased ratings for right and left hallux valgus, and service connection for fatigue. (See Board hearing transcript page 2.) The Board notes that at the Board hearing, the rating issue on appeal was erroneously characterized as having evaluations of 10 percent prior to February 2015 and 50 percent from then. The Board notes that in addition to right and left hallux valgus, the Veteran is in receipt of service connection for bilateral pes planus evaluated as 10 percent disabling prior to February 2015 and 50 percent from that date. Her hallux valgus is rated as noncompensable. Regardless of the mischaracterization during the hearing, the Veteran indicated her intent to withdraw the issue of entitlement to increased ratings for her hallux valgus. Thus, there remain no allegations of errors of fact or law for appellate consideration on those issues. Accordingly, the Board does not have jurisdiction to review them. ORDER The appeal on the issue of entitlement to a compensable initial rating for left foot hallux valgus is dismissed. The appeal on the issue of entitlement to a compensable initial rating for right foot hallux valgus is dismissed. The appeal on the issue of entitlement to service connection for a disability manifested by fatigue is dismissed. REMAND Left Knee & Right Knee Disabilities The Veteran contends that service connection is warranted on a direct or secondary basis for bilateral knee disability. She testified at the 2013 RO hearing that she twisted her left knee one time in service and had an injury in basic training during hand-to-hand combat training, but that most of her knee troubles are due to running. She also testified at the 2016 Board hearing that she injured her knees in service, and that her gait is thrown off because of her service-connected foot disability. The STRs reflect that in August 1990, the Veteran had a knee complaint. A February 1992 STR reflects that she had complaints of pain in both knees. The Veteran testified at the 2013 RO hearing and the 2016 Board hearing that her knees have continually worsened in pain since service. A post service June 2010 VA examination report reflects that the Veteran reported bilateral knee pain. The report reflects a diagnosis of "no abnormalities on which to render a diagnosis bilateral knees." The examiner stated that the Veteran has some crepitus in the knees "however, crepitus is not a diagnosis and is present in most individuals." The examiner noted that the Veteran was seen in service, and only had crepitus, without a diagnosis of an abnormality, in service. A 2010 VA radiology finding of the left knee was that there was a small spur in the tibial spine. The Veteran had no bony abnormality of the right knee upon radiology testing. The Board finds that another VA examination with an opinion is warranted. With regard to the left knee, the examiner should discuss whether the small spur in the left tibial spine constitutes a disability, and if so, whether it is as likely as not that any such disability is causally related to, or aggravated by, service or a service-connected disability. With regard to the right knee, the examiner should state whether the Veteran has a current disability, and if so, whether it is as likely as not that any such disability is causally related to, or aggravated by, service or a service-connected disability Back Disability The Veteran has indicated that service connection is warranted for a back disability on a direct incurrence or secondary basis. She testified that she had problems with her back in service, and that in service, she went to jump school (Airborne training), AIT (advanced individual training), ran every day for 16 weeks, and was in basic training. She reported that she had an injury in basic training with pugil sticks in hand to hand combat, where she jammed her neck. (See Board hearing transcript, page 17.). The Veteran also testified that her service-connected foot disability affects her back. The June 2010 VA examination report reflects that the Veteran reported gradually developing pain in the lower back, and that the pain has become constant. Upon examination, there was a slight prominence of the right upper back, and the Veteran had a gait abnormality of excessive midtarsal pronation. She was diagnosed with "Transitional LR. Minimal scoliosis of the lumbar spine." and "Mild left sacroiliitis." The examiner opined that it is less likely than not that the Veteran's disabilities are a continuation of the low back strain and/or pain that the Veteran had while in service and provided an adequate rationale. However, the Veteran failed to provide an opinion as to whether the Veteran's disabilities are caused by, or chronically aggravated by, her service-connected foot disability. Thus, another opinion is warranted. In addition, it has now been more than five years since the last examination; thus, another examination may be useful to the Board in adjudicating the Veteran's claim. Headaches The Veteran has alleged that service connection is warranted for headaches on a direct incurrence or secondary basis. She contends that she has headaches secondary to her service-connected PTSD, and that when she has stress and anxiety, her headaches worsen and turn into migraines. She also testified that after the incident in basic training with the pugil stick, in which she jammed her head/neck, she had headaches in service. (See Board hearing transcript, pages 20 - 22.) The Veteran's STRs reflect that in April 1990, she sought treatment for headaches, dizziness, lower neck, and upper chest pain and noted that she had been hit in the head two weeks earlier. A June 2010 VA examination report reflects that the Veteran reported headaches with sinus pain and sinus tenderness. She also reported that she started having headaches because of sensitivity to light and reported an onset date of 1994 (post service). The examiner opined that it is less likely as not that the headaches are a continuation of the headaches which the Veteran had on active duty, and noted that she was only seen once in service for a questionable tension headache in April 1990 after having been hit in the head two weeks earlier. However, the examiner did not address whether headaches are related to the Veteran's service-connected PTSD. The clinician should provide an opinion as to whether it is as likely as not that the Veteran's service-connected PTSD causes, or chronically aggravates, a headache disability Fibrocystic breasts The Veteran contends that she has a disability of fibrocystic breast disease, and clinical records reflect that she has been diagnosed with fibrocystic breast disease. A June 2010 VA examination report reflects that the Veteran reported tenderness and swelling of the breasts bilaterally. Upon examination, she had diffuse nodularity. The examiner noted that there was no evidence of ongoing problems with the condition and it is "often related to hormonal changes, which appears to be the case at this time." A March 2011 VA clinical record reflects that the Veteran's breasts were normal and symmetrical without adenopathy, masses, discharge, skin changes, tenderness or other findings. A September 2012 VA breast examination was negative for any complaints. The Board is unsure if diffuse nodularity is an actual disability or rather a normal condition. Thus, a clinical opinion as to whether it is a disease or a normal finding would be helpful to the Board. Fibroids The Veteran testified that she could not recall having fibroids or anything like that problem in service, and that she had regular menstrual cycles in service. (See Board hearing transcript, page 38.) A post-service August 2009 echogram reflects that the Veteran had a small uterine fibroid and bilateral follicular cysts. The record reflects that the Veteran had a hysterectomy in February 2010, during the course of the appeal. A June 2010 VA examiner diagnosed the Veteran with fibroid tumors of the uterus but did not render an etiology opinion. Instead, the examiner recommended an examination by a gynecology specialist due to the "complexity" of the Veteran's case. It is unclear whether the hysterectomy was due to her fibroid. Given the Veteran's hysterectomy, it is also unclear what residual disability remains. When VA obtains an examination/opinion, it must ensure that such is adequate. The Board finds that the above report is inadequate because the examiner stated that another examination was recommended. Scar of breast The Veteran's scar is rated as noncompensable effective from April 2009. The Veteran testified at the March 2016 Board hearing that the scar on her breast is constantly painful and when touched, it is "very painful". She stated that it is always (constantly) painful, even when not being touched, but is worse ("very" painful) when pushed on. She also indicated that it is unstable, gets red or scabs over, is irritated, and is affected by the underwire of her bra.(See Board hearing transcript, page 26 and 27.) The Board notes that this testimony is substantially different from the clinical findings. A June 2010 VA examination report reflects that the scar was a "horizontal faint linear scar on the right lateral breast at the level of the nipple." The Veteran reported "minor itching occasionally." The scar was 1.0 cm by 5.0 cm. It was not painful, there were no signs of skin breakdown, it was superficial, there was no inflammation, no edema, no keloid formation, and no other disabling effects. A March 2011 VA clinical record reflects that the Veteran's breasts were normal and symmetrical without adenopathy, masses, discharge, skin changes, tenderness or other findings. A September 2012 VA breast examination was negative for any complaints. Based on the substantial inconsistency between the clinical records and the Veteran's testimony, the Board finds that the Veteran should be scheduled for another VA examination to determine if her scar has increased in severity. TDIU The issue of entitlement to a TDIU is inextricably intertwined with the above rating issue which is being remanded. Therefore, it must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain updated private and VA clinical records and VA vocational rehabilitation records, if any. 2. Schedule the Veteran for an examination of her right and left knees. The clinician should opine as to whether the Veteran's 2010 VA radiology finding of the a small spur in the tibial spine of the left knee is a disability. Thereafter, the clinician should opine as to whether it is as likely as not that the Veteran has a left and/or right knee disability which is causally related to, or chronically aggravated by, active service or a service-connected disability (e.g. pes planus and/or hallux valgus). The clinician should consider the pertinent evidence of record, to include: a.) the STRs; b.) the June 2010 VA examination report; c.) the Veteran's contentions as to physical training in service; and d.) the Veteran's contention as to an altered gait affecting her knees. 3. Schedule the Veteran for an examination of her back. The clinician should opine as to whether it is as likely as not that the Veteran has a back disability which is causally related to, or chronically aggravated by, active service or a service-connected disability (e.g. pes planus and/or hallux valgus). The clinician should consider the pertinent evidence of record, to include: a.) the STRs; b.) the June 2010 VA examination report; c.) the Veteran's contentions as to physical training in service; and d.) the Veteran's contention as to an altered gait affecting her back. 4. Obtain a supplemental opinion with regard to the Veteran's headaches. The clinician should consider whether it is as likely as not that the Veteran's service-connected PTSD cause, or chronically aggravates, a headache disability. The clinician should consider the pertinent evidence of record to include: a.) the Veteran's contention that stress and anxiety from PTSD turn her headaches into migraines; b.) the Veteran's contention that her headaches began in 1994 because of sensitivity to light; and c.) the clinical records which reflect that the Veteran has reported headaches with sinus pain and tenderness. 5. Obtain a clinical opinion as to whether fibrocystic breasts (diffuse nodularity) are a disease/disability or whether such a condition is a normal condition for the Veteran. 6. Schedule the Veteran for a gynecological examination as recommended by the June 2010 VA examiner to obtain an opinion as to whether it is as likely as not that the Veteran had uterine fibroids during the pendency of her claim causally related to, or aggravated by, active service. (If a clinician finds that an examination is not necessary because the Veteran no longer has a uterus, an examination is not needed, and a clinical opinion alone may be provided.) The clinician should consider the pertinent clinical evidence to include: a.) the Veteran's testimony that to her knowledge she did not have fibroids in service, and that she had regular menstrual cycles in service; and b.) a post-service August 2009 echogram which reflects a small uterine fibroid and bilateral follicular cysts. The clinician should describe any residuals of the hysterectomy. 7. Schedule the Veteran for an examination of her breast scar to determine its severity. The clinician should opinion as to whether, based on the size, location, and characteristics of the scar, it is as likely as not that the scar causes pain. 8. Following completion of the above, readjudicate the issues on appeal. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and her representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. 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). 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). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs