Citation Nr: 1802065	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  13-26 674	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a right hip disability.

2.  Entitlement to service connection for a back disability, to include arthritis.


REPRESENTATION

Veteran represented by:	Charles D. Romo, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 
INTRODUCTION

The Veteran served on active duty from June 1979 to July 1979, February 1980 to October 1993, and June 1999 to November 1999, with additional reserve service.

These matters come before the Board of Veterans' Appeals (Board) from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In December 2016, the Veteran testified during a travel board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record.

The Veteran's back claim is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

During the December 2016 travel board hearing and prior to the promulgation of a decision in this appeal, the Veteran indicated that he wished to withdraw the claim for entitlement to service connection for a right hip disability currently pending before the Board; there are no questions of fact or law remaining for the Board to consider.


CONCLUSION OF LAW

The criteria for the withdrawal of the issue of entitlement to service connection for a right hip disability have been met.  38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary.  38 U.S.C. § 7104 (2012).  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  An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204 (2017).  A withdrawal of an appeal is effective when received.  38 C.F.R. § 20.204(b)(3) (2017).

During the December 2016 travel board hearing, the Veteran indicated his desire to withdraw the right hip claim currently pending before the Board.  See transcript, p. 2.  Said withdrawal was requested prior to the promulgation of a Board decision on this matter.  Accordingly, there are no allegations of error of fact or law remaining for appellate consideration, and the Board does not have jurisdiction to further consider an appeal of this matter.

ORDER

The appeal seeking entitlement to service connection for a right hip disability is dismissed.


REMAND

Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's back claim.  

During the December 2016 hearing, the Veteran reported a period of reserve service following his exit from active duty.  The Board has been unable to confirm the exact dates of the Veteran's reserve service based upon the evidence of record.  Thus, a remand is now warranted such that the full span of the Veteran's military service may be identified, and all corresponding service records may be associated with the claims file.  

Further, the Veteran has reported treatment at the Jacksonville VA Medical Center (VAMC) from 2010 to the present.  As these records have not yet been associated with the claims file, all reasonable efforts must now be made to obtain them.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(c)(2) (2017).  

Finally, the Veteran underwent VA spine examination in July 2010.  At that time, the examiner asserted that it would be to "resort to mere speculation" to opine as to whether the Veteran's current back condition was causally related to his military service.  The Board finds this opinion to be inadequate.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Further, the examiner's rationale addresses several in-service complaints of back pain, but disregards a July 1999 service treatment record (STR) therefor.  Thus, the Board finds that an addendum opinion is now warranted such that an adequate nexus opinion may be obtained.  

Accordingly, the case is REMANDED for the following actions:

1.  Conduct appropriate development to confirm the Veteran's periods of military service, to include active duty for training (ACDUTRA), inactive duty for training (INACDUTRA), and reserve service.    

2.  If it is found that the Veteran had a period of service not previously known to VA, the RO must ensure that the Veteran's service personnel and treatment records are obtained and associated with the claims file.  

3.  Obtain and associate with the record all VA treatment records for the Veteran from August 2010 to the present, to include from the Jacksonville VAMC.  All actions to obtain the requested records should be fully documented in the record.  If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing.

If possible, the Veteran himself should attempt to obtain all the records cited above. 

4.  Obtain a VA addendum opinion assessing the nature and etiology of the claimed back disability.  The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred.  All pertinent symptomatology and findings must be reported in detail.  Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted.

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 indicate the following:

a.  Whether the Veteran has demonstrated a back disability at any time during the pendency of this appeal;

b.  If so, indicate whether it is at least as likely as not (50 percent probability or more) that the disability began in service, was caused by service, or is otherwise related to military service.  A complete review of the Veteran's service treatment records must be undertaken and all in-service treatment for back problems must be accounted for, to include a July 1999 treatment note.

In providing the above opinions, the examiner must explicitly account for the Veteran's competent testimony regarding his symptoms, including the onset and nature thereof.

In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

A complete rationale should be provided for any opinion or conclusion expressed, with citation to medical treatise, studies, etc., if appropriate.  If any opinion cannot be provided without resorting to mere speculation, provide a complete explanation stating why, to include explaining whether the inability to provide a more definitive opinion is the result of a need for additional information or that you have exhausted the limits of current medical knowledge in providing answers to the questions.

5.  Readjudicate the claim on appeal.  If the benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran and his representative and provide an appropriate period for response.

The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012).



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs