Citation Nr: 1801786 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-29 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a scar on the right side. 2. Entitlement to service connection for a right hand scar. 3. Entitlement to service connection for a chest scar. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for scars on the right wrist. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right hand condition. 6. Entitlement to service connection for hemorrhoids. 7. Entitlement to service connection for a bilateral hearing loss disability. 8. Entitlement to service connection for tinnitus. 9. Entitlement to service connection for chronic otitis media (ear infections). 10. Entitlement to service connection for a low back disability. 11. Entitlement to service connection for a left knee disability. REPRESENTATION Veteran represented by: The American Legion 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 1972 to June 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction is now with the VA RO in Nashville, Tennessee. In its October 2009 decision, the RO denied, among other claims, service connection for hemorrhoids, a bilateral hearing loss disability, tinnitus, chronic otitis media, a low back disability, and a left knee disability. In June 2010, within one year of the notice of those denials, the Veteran submitted a statement and medical records which the Board finds constitutes new and material evidence relating to a potential nexus between these current disabilities and his active service. These denials were confirmed and continued in an October 2010 rating decision and the Veteran has perfected these claims to the Board. Therefore, these claims have remained pending and stem from the RO's October 2009 rating decision. In its October 2010 rating decision, the RO denied for the first time entitlement to service connection for a scar on the right side, a right hand scar, and a chest scar. The RO also found that new and material evidence had not been submitted to reopen the claim of service connection for a right wrist scar and a right hand condition, and continued the denial of those claims. The Veteran has properly perfected these appeals to the Board and the Board finds these claims stem from the RO's October 2010 rating decision. The Board notes that whether new and material evidence was received to reopen the claims for a right wrist scar and a right hand condition is moot given that the Veteran has withdrawn these claims. In September 2015, the Veteran's claim was remanded to afford him a hearing before the Board. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Accordingly, the Board finds its September 2015 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of entitlement to service connection for a bilateral hearing loss disability, tinnitus, chronic otitis media, a low back disability, and a left knee disability are addressed in the REMAND that follows the ORDER of this decision. FINDING OF FACT Prior to the promulgation of a decision in the appeals, the Veteran withdrew his claims for entitlement to service connection for a scar on the right side, a right hand scar, a chest scar, and hemorrhoids, and also withdrew the issues of whether new and material evidence has been received to reopen the claims of service connection for scars of the right wrist and a right hand condition. CONCLUSION OF LAW The criteria for withdrawal of the appeals for entitlement to service connection for a scar on the right side, a right hand scar, a chest scar, and hemorrhoids, and whether new and material evidence has been received to reopen the claims of service connection for scars of the right wrist and a right hand condition, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING 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. § 7105. A substantive appeal may be withdrawn by a veteran or his or her authorized representative in writing or at a hearing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. At his October 2017 hearing, the Veteran withdrew the appeals for entitlement to service connection for hemorrhoids, a scar on the right side, a right hand scar, and a chest scar, and also withdrew the issues of whether new and material evidence has been received to reopen the claims of service connection for scars of the right wrist and a right hand condition. 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 over these issues, and dismissal is warranted. ORDER The appeals for entitlement to service connection for a scar on the right side, a right hand scar, hemorrhoids, and a chest scar, and whether new and material evidence has been received to reopen the claims of service connection for scars of the right wrist and a right hand condition, are dismissed. REMAND Although the Board regrets the additional delay, a remand is required for further development and adjudication. In a September 2009 statement, the Veteran indicated that he worked with the Department of Defense in Frankfurt, Germany, from July 1979 through August 1983 and from August 1987 through December 1991, and that civilian records from military hospitals may be available. No attempts to obtain these records have been made. On remand, the RO must send the Veteran a letter requesting that identify the specific facilities where received this treatment and that he complete and return an authorization to allow VA to attempt to obtain these records from these identified facilities on his behalf. Notably, the Veteran has reported he received treatment at VA facilities in Chicago, Illinois from 1984 through 1987, Viero, Florida from December 2004 through September 2006, and in Martinsburg, West Virginia from September 2006 through the present. There are no available records from the Chicago VA Healthcare System and the Veteran has been informed of such as required by VA regulation. Records from Viero, Florida, and Martinsburg, West Virginia, have been obtained and associated with the evidence of record. However, a May 2005 VA audiology consultation notes that pure tone threshold testing was performed, yet the audiogram results are not associated with the evidence of record. Notably, the Veteran now resides in Tennessee, and may receive VA medical facilities there. Accordingly, on remand, the RO must send the Veteran a letter and request that he identify all VA facilities where he has and continues to receive treatment. Thereafter, the RO must attempt to obtain all outstanding VA medical records, to include the May 2005 audiogram results. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). The Board acknowledges that the only available service treatment records associated with the Veteran's claims file are a December 1972 examination report and a report of medical history. The Veteran's complete service treatment records have been unable to be located and the Veteran has been properly notified of such as required by VA regulation. In a case like this in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist a veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). However, this heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). In this regard, the Board notes that the Veteran has not been afforded VA examinations in connection with this appeal to determine the etiology of his claimed disabilities. Given his current diagnoses and treatment for his claimed disabilities, as reflected in VA medical records and private treatment records, along with his competent lay statements, the Board finds that VA medical examinations and opinions are required. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he complete and return authorizations to allow VA to obtain any identified records on his behalf, to specifically include civilian medical records from Department of Defense facilities located in Frankfurt, Germany, from July 1979 through August 1983 and from August 1987 through December 1991. The Veteran must also be requested to identify all VA medical facilities where he has received and continues to receive medical treatment for any of his claimed disabilities. If the Veteran submits any medical authorization that is insufficient for further action, he should be notified, and any such notification should be properly documented in the claims file. 2. Upon receipt of any valid medical authorization, VA must attempt to obtain any identified records in accordance with VA regulation. See 38 C.F.R. § 3.159(c) (2017). Regardless of the Veteran's response, obtain all outstanding VA treatment records, to include, but not limited to an audiogram report from the Tampa, Florida VA Healthcare System dated May 2005 and any other audiogram reports that are not currently of record. If any of the named records are unable to be obtained, a Memorandum of Formal Finding of Unavailability must be prepared and associated with the Veteran's claims file. Additionally, the Veteran and his representative must be notified of the unavailability of any records as outlined in VA regulation. See 38 C.F.R. § 3.159(e) (2017). 3. Following completion of steps 1 and 2, afford the Veteran the appropriate VA examination(s) to determine the etiology of any bilateral hearing loss disability, tinnitus, and chronic otitis media found. The examiner must elicit from the Veteran a full history of any related incidents/injuries during active service as well as a description of the onset and continuity of symptoms during and since separating from active service related to his claimed disabilities. The examiner(s) must be informed that the Veteran's service treatment records are unable to be located and that lay statements must be given adequate consideration. Lay statements may not be discounted solely because there is no contemporaneous medical evidence or documentation of injuries, incidents, or symptoms during service. Following a complete review of the medical and lay evidence of record, the examiner is requested to provide the following opinions: * Whether it is at least as likely as not (50 percent probability or higher) that any bilateral hearing loss disability began in or is etiologically related to the Veteran's active duty service. * Whether it is at least as likely as not (50 percent probability or higher) that any tinnitus began in or is etiologically related to the Veteran's active duty service. * Whether it is at least as likely as not (50 percent probability or higher) that any chronic otitis media began in or is etiologically related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide a thorough rationale for that conclusion. 4. Following completion of steps 1 and 2, afford the Veteran the appropriate VA examination(s) to determine the etiology of his low back disability and left knee disability. The examiner must elicit from the Veteran a full history of any related incidents/injuries during active service as well as a description of the onset and continuity of symptoms during and since separating from active service related to his claimed disabilities. The examiner must be informed that the Veteran's service treatment records are unable to be located and that lay statements must be given adequate consideration. Lay statements may not be discounted solely because there is no contemporaneous medical evidence or documentation of injuries, incidents, or symptoms during service. Following a complete review of the medical and lay evidence of record, the examiner is requested to provide the following opinions: * Whether it is at least as likely as not (50 percent probability or higher) that any low back disability began in or is etiologically related to the Veteran's active duty service. * Whether it is at least as likely as not (50 percent probability or higher) that any left knee disability began in or is etiologically related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must provide a thorough rationale for that conclusion. 5. The Veteran is notified that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. 6. In order to avoid an additional remand, the medical opinions provided MUST be reviewed by the Agency of Original Jurisdiction to ensure they are supported by adequate rationale and an accurate factual basis AND that the opinions consider the Veteran's lay statements and the fact that his service treatment records are unavailable. If any medical opinion is found to be inadequate, corrective action must be taken at once. 7. Then, the Veteran's claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, 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 should be returned to the Board for further appellate action. (CONTINUED ON NEXT PAGE) The Veteran 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs