Citation Nr: 1623456 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 12-05 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1971 to January 1973. This case comes before the Board of Veterans' Appeals (the Board) on appeal from September 2011 and November 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The issues of service connection for a cervical spine disability and a bilateral shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to the promulgation of a decision in the appeal, in March 2013 the Veteran indicated that he wanted to withdraw his appeal as to the issue of service connection for a bilateral hearing loss disability. CONCLUSION OF LAW The criteria for withdrawal of the appeal service connection for a bilateral hearing loss disability have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. A substantive appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In March 2013, the Veteran clearly indicated that he wanted to withdraw the appeal as to service connection for a bilateral hearing loss disability. As such, there remain no allegations of errors of fact or law for appellate consideration. See 38 C.F.R. § 20.204. Accordingly, the Board does not have jurisdiction to review this issue, and it is dismissed. ORDER The appeal as to service connection for a bilateral hearing loss disability is dismissed. REMAND The Veteran essentially contends that he injured his bilateral shoulders and cervical spine disabilities during service lifting heavy pipes on a drilling rig in Vietnam, and that he has had problems ever since that time. Review of the service treatment records reflects that prior to service discharge, the Veteran reported having/having had back trouble but denied painful or trick shoulder. In March 1971, the Veteran complained of neck stiffness when he was diagnosed with an upper respiratory infection. Subsequently, at service discharge, he indicated having/having had painful or trick shoulder but denied recurrent back pain. Post-service treatment records shows that the Veteran complained of cervical pain in April 2011. The Veteran was afforded VA examinations in November 2011. Noting a diagnosis of cervical degenerative disk disease, the examiner determined that it was less likely than not that it was incurred in or caused by service. The examiner cited to service treatment records showing neck stiffness on one occasion and the examination report at service separation reflecting normal upper extremities and spine, as well as the Veteran's report of shoulder pain and painful joints, but not neck pain. The examiner further noted that review of the claims folder showed that the Veteran did not complain of neck pain until 2011 and, if pain was reported to other providers before coming to VA, those records were not included in his claims folder. She opined that the Veteran's arthritis, due to natural aging, was the likely cause of the Veteran's pain and not cervical strain during service. As to the Veteran's shoulders, the examiner diagnosed mild bilateral degenerative changes of the acromioclavicular joints and determined that it was less likely than not incurred in or caused by service. She cited the same rationale provided for the cervical spine opinion, coupled with the fact that the Veteran was not seen for shoulder pain during service. The examined did, however, note that the Veteran reported pain on separation, but found that his first post-service complaint was not until 2011. Due to the significant time lapse in the reporting of symptoms, the examiner indicated that she could not clearly establish a nexus between shoulder pain during service and current disability. The Board finds that the November 2011 VA examinations and opinions are inadequate. The examiner failed to consider the Veteran's competent and credible lay statements as to in-service injury, as well as his assertions as to having had pain ever since service. Rather, the examiner relied heavily on the lack of documented complaints of problems in service until 2011 in opining that the disabilities were not related to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting the lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (stating that the "Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Therefore, the Veteran must be afforded another examination to determine the nature and etiology of any current cervical spine and bilateral shoulder disabilities. On remand, any outstanding records should be obtained. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should request that the Veteran provide or authorize the release of any records of non-VA health care providers who have provided treatment for his disabilities on appeal. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any treatment records dated from March 2013 to the present. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current cervical spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should elicit a complete history from the Veteran. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed cervical spine disability is related to service, to include the notations of neck stiffness therein and the Veteran's assertions of having had pain ever since service due to lifting heavy pipes on the drilling rig in Vietnam. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current bilateral shoulder disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. The examiner should elicit a complete history from the Veteran. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed bilateral shoulder disability is related to service, to include the Veteran's assertions of having had pain ever since service due to lifting heavy pipes on the drilling rig in Vietnam. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. As it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the entire claims file, must be made available to the examiner for review If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). ______________________________________________ ANTHONY C. SCIRÉ, JR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs