Citation Nr: 1801824 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-17 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for the left hand/finger disorder. 2. Entitlement to an initial compensable disability rating for right knee tendonitis. 3. Entitlement to an initial compensable disability rating for left knee tendonitis. 4. Entitlement to an initial compensable disability rating for hallux valgus, right foot. 5. Entitlement to an initial compensable disability rating for hallux valgus, left foot. 6. Entitlement to an initial compensable disability rating for bilateral hearing loss. 7. Entitlement to service connection for a lumbar spine disability. 8. Entitlement to an initial disability rating in excess of 10 percent for left shoulder strain. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2000 to August 2000, June to July 2001, May 2002 to December 2002, and June 2004 to May 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's case has since been transferred to the Houston RO. In March 2017, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The issue of entitlement to an increased initial rating for the left shoulder strain is remanded for additional evidentiary development below. Therefore this claim is REMANDED to the Agency of Original Jurisdiction (AOJ) for further development as described in the REMAND portion of this decision. VA will notify the Veteran if additional action is required on his part. FINDINGS OF FACT 1. In March 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desired to withdraw his appeal for entitlement to service connection for a left finger/hand disorder, as well as entitlement to increased initial ratings for bilateral knee tendonitis, bilateral foot hallux valgus, and bilateral hearing loss. 2. Chronic thoracolumbar spine disability manifestations have been present since service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for a left finger/hand disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal for entitlement to an initial compensable disability rating for the right knee tendonitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal for entitlement to an initial compensable disability rating for the left knee tendonitis have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal for entitlement to an initial compensable disability rating for the right foot hallux valgus have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of the appeal for entitlement to an initial compensable disability rating for the left foot hallux valgus have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of the appeal for entitlement to an initial compensable disability rating for bilateral hearing loss have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 7. Thoracolumbar spine disability was incurred in active service. 38 U.S.C. § 1110, 1111 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal 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 (2012). 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 (2017). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204(a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b). In the course of his March 2017 Board hearing, the Veteran indicated he wished to withdraw his pending appeal for entitlement to service connection for a left finger/hand disorder, as well as entitlement to increased initial ratings for bilateral knee tendonitis, bilateral foot hallux valgus, and bilateral hearing loss. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran's appeal, and those issues must be dismissed. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 C.F.R. § 3.304 (d). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends service connection is warranted for a thoracolumbar spine disability because it originated on active duty. In the course of his July 13, 1998 entrance examination, the Veteran's spine was assessed as normal. The Veteran underwent a pre-deployment health assessment in August 2004, prior to his tour of duty in Iraq. At that time no back disorders were noted. Thereafter, in the course of his March 2005 post-deployment health assessment the Veteran reported experiencing joint and muscle pain. During his March 2017 Board hearing the Veteran stated that his back began to bother him prior to his deployment, and became worse during his deployment as a result of marches in full gear. He also competently reported that since that time he has experienced ongoing chronic pain, which has continued to worsen. The Veteran reported that he was unable to obtain much medical treatment, as he was in a combat area. Therefore, he would see his attached medical corpsman, who provided him with minimal therapy, which included painkillers and Motrin. A more recent outpatient treatment note from the Houston VAMC dated February 23, 2010 shows the Veteran was diagnosed with disc space narrowing at the L4-L5 and L5-S1 spinal segments. His private clinicians have attributed his lower back pain to his degenerative changes. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). Here, the Veteran has reported that he experienced lower back pain following his 2004-2005 deployment, which has persisted ever since. The Board finds the Veteran competent to report such manifestations. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence, as the Veteran is truly the only person capable of such observation. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disability and his injury in service. The Veteran has competently and credibly reported that he experienced lower back pain during and since service due to his use of heavy gear on long missions. In addition his treating VA clinicians have attributed the Veteran's current back pain to his lumbar degenerative changes. Accordingly, a nexus to service is established. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed lumbar spine disability and his in-service lower back manifestations is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his lumbar spine disability. ORDER The appeal for entitlement to service connection for a left hand/finger disorder is dismissed. The appeal for entitlement to an initial compensable disability rating for right knee tendonitis is dismissed. The appeal for entitlement to an initial compensable disability rating for left knee tendonitis is dismissed. The appeal for entitlement to an initial compensable disability rating for hallux valgus of the right foot is dismissed. The appeal for entitlement to an initial compensable disability rating for hallux valgus of the left foot is dismissed. The appeal for entitlement to an initial compensable disability rating for bilateral hearing loss is dismissed. Service connection for a lumbar spine disability, currently diagnosed as degenerative changes at the L4-5 and L5-S1 levels, is granted. REMAND The Board is of the opinion that additional development is required before the remaining issue on appeal is decided. The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). In this case, a VA examination of the Veteran's left shoulder disability was last conducted in September 2010. During his March 2017 Board hearing the Veteran stated his disability has worsened. As there is evidence of a worsening of the disability since the last VA examination, which was performed several years ago, the claim must be remanded for a new examination to determine the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). On remand, relevant ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); 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). Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issue on appeal, to specifically include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected left shoulder disability. The electronic records should be made available to and reviewed by the examiner. Ensure the examiner provides all information required for rating purposes. 3. Finally, undertake any other indicated development, and then readjudicate the remaining issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs