Citation Nr: 1803339 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-21 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to service connection for gynecological disorders, to include pelvic inflammatory disease (PID) and fibroids. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a back disorder. 4. Entitlement to service connection for a back disorder. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a neck disorder. 6. Entitlement to service connection for a neck disorder. 7. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a right foot disorder. 8. Entitlement to service connection for a right foot disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and N.S. ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1979 to March 1986, August 1990 to July 1991, and October 1998 to December 1998, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. Jurisdiction rests with the RO in Houston, Texas. In December 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript (Tr.) of the hearing is of record. The Veteran's claims of entitlement to service connection for PID and fibroids have been consolidated and recharacterized as reflected on the title page, to include consideration of all gynecological disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim for service connection for obstructive sleep apnea and the petition to reopen the claims for service connection for back, neck, and right foot disorders is addressed below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to the promulgation of a decision, in her December 2016 Board hearing testimony, the Veteran withdrew the issue of entitlement to service connection for obstructive sleep apnea. 2. In a March 2006 rating decision, the RO denied the Veteran's service connection claims for back, neck, and right foot disorders. In April 2006, the Veteran requested the RO to reopen the claims. In September 2007, the RO confirmed and continued the prior denial as the Veteran had not submitted new and material evidence sufficient to reopen the previously denied claims; the Veteran did not appeal this determination, and new and material evidence was not received within a year of its issuance. 3. Evidence received more than one year since the September 2007 rating decision, to include VA treatment records, an April 2017 VA foot examination report, lay statements, and the Veteran's December 2016 hearing testimony, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran's claims of service connection for back, neck, and right foot disorders. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for the claim of entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The September 2007 rating decision that denied service connection for back, neck, and right foot disorders is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2017). 3. New and material evidence having been received, the claims of entitlement to service connection for back, neck, and right foot disorders are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 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. § 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 appellant or by his or her authorized representative. Id. In the present case, the Veteran, in her Board hearing testimony, advised that she wished to withdraw her appeal for service connection for obstructive sleep apnea. See December 2016 Hearing Tr. at 2. Accordingly, she has withdrawn the appeal as to this issue and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on this issue and it is dismissed. ORDER The appeal for entitlement to service connection for obstructive sleep apnea is dismissed. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disorder. New and material evidence has been received to reopen the claim of entitlement to service connection for a neck disorder. New and material evidence has been received to reopen the claim of entitlement to service connection for a right foot disorder. REMAND The Veteran asserts that her current right foot disorder is the result of wearing military boots and running during service, which caused a knot on her foot. See December 2016 Hearing Tr. at 23. A November 1988 report of medical examination documents the Veteran's report of foot trouble. Her Reserve service treatment records note bilateral foot arthroplasty of the 5th digit in August 1990. In an August 1996 report of medical history, she reported a history of foot trouble. The contemporaneous clinical evaluation noted no sequela. In December 1999, she had a lipoma (also noted as a ganglion cyst) of the right foot removed. She asserts that her right foot pain has continued since active duty service. In April 2017, both of the Veteran's feet were examined in conjunction with a separate claim for service connection for a left foot disorder, and x-ray revealed small plantar spurs and mild degenerative changes of the right foot. See April 2017 VA examination report. As the accompanying May 2017 nexus opinion does not adequately address the Veteran's assertions or diagnosed right foot neuritis and hypertrophic scars (see July 2000, June 2006 and February 2017 VA treatment records), an addendum opinion is needed on remand. Further, the Veteran contends that her current back and neck pain is the result of the rigors of service to include marching, lifting and carrying heavy backpacks. See December 2016 Hearing Tr. at 13. She testified that she was placed on profile in Germany due to neck and back spasms. Id. at 21. Following the Veteran's first period of active service, in February 1987, she complained of chronic recurrent cervical and back pain beginning in 1982. The contemporaneous x-ray revealed "loss of normal cervical curvature which could be due to spasms or previous trauma" and mild scoliosis and spina bifida. In March 1987, she reported an in-service back and neck injury from lifting and was diagnosed with a muscle spam status post an old back strain. In November 1988, she again reported back pain that was considered not clinically significant. The Veteran's service treatment records from her first period of service have been determined to be unavailable. In a March 1992 letter, the Veteran reported that she filed a claim for a back disorder in approximately August 1986 but never received a response from the RO. In an August 1996 report of medical history, she reported frequent neck and back pain. The Board also notes that the Veteran was in a motor vehicle accident in January 2003 causing neck pain. Given the Veteran's lay statement alleging back and neck symptoms beginning in service, a VA examination to address the etiology of the back and neck disorders should be conducted. McLendon, supra. Furthermore, the Veteran contends that her gynecological disorders, to include PID and fibroids had their onset during active service. Specifically, she testified that during active duty she experienced abdominal and pelvic pain which caused her to have a "D&C" at Winn Hospital in Korea. See December 2016 Hearing Tr. at 3. Following her hospital stay she began to experience continuous urinary tract infections, bleeding, and depression during active duty service. In an August 1996 report of medical history, she reported that she was treated for a female disorder, had a change in her menstrual pattern, and was treated at Winn Hospital in Korea in 1981. On a September 2000 report of medical history, she reported an inpatient stay in Korea for two days. VA treatment records note a history of fibroids, pelvic inflammatory infection, and heavy bleeding. Given the Veteran's lay statement alleging gynecological symptoms beginning in service, a VA examination to address the etiology of the gynecological disorders should be conducted. McLendon, supra. On remand, the Winn Hospital inpatient records should be associated with the record. An additional search for the Veteran's complete service treatment records should also be conducted on remand. All active duty and Reserve treatment records should be obtained on remand. Moreover, the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) have not been verified, and this should be accomplished on remand. Finally, all updated treatment should be secured. Accordingly, the case is REMANDED for the following actions: 1. Verify the Veteran's specific dates of ACDUTRA and INACDUTRA in the Army Reserve. Retirement points will not suffice. 2. Obtain a complete copy of the Veteran's service treatment records pertaining to her active service and Reserve service. A specific request should be made for any outstanding separately stored records pertaining to a "D&C", abdominal and or pelvic pain from the Winn Hospital in Korea (approximately in 1981). If any of these records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Obtain all outstanding VA treatment records, to include the 2015 or 2016 Audie Murphy back surgery report. 4. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, to include from Dr. Cantenase. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 5. Thereafter, obtain an addendum opinion to determine the etiology of any right foot disorder. The claims file must be made available to the examiner. All necessary testing should be accomplished. The examiner should address the following: For each right foot disorder diagnosed during the appeal period, to include status post arthroplasty of the right foot, plantar spurs, degenerative changes, neuritis, and a right foot hypertrophic scar, please opine whether it is at least as likely as not (50 percent probability or more) that such disability: (a) had its onset during service or a verified period of ACDUTRA; (b) is otherwise the result of a disease or injury incurred during active duty or a verified period of ACDUTRA; or (c) is otherwise the result of an injury incurred during a verified period of INACDUTRA. In addressing this question, please discuss the in-service notation of foot pain (Reserve), arthroplasty of the right foot in August 1990 (active duty), August 1996 report of foot pain (Reserve), the December 1999 ganglion cyst removal (Reserve), the April 2017 VA foot examination, and the Veteran's report of right foot pain caused by her military boots. See December 2016 Hearing Tr. at 23. The examiner must provide robust rationales for each opinion. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of her neck and back disorders. The claims file must be made available to the examiner. All necessary testing should be accomplished. The examiner should provide opinions on the following: (a) For each neck and back disorder diagnosed other than diagnosed scoliosis and spina bifida noted on the February 1987 x-ray, please opine whether it is at least as likely as not (50 percent probability or more) that such disability: (1) had its onset during service or a verified period of ACDUTRA; (2) is otherwise the result of a disease or injury incurred during active duty or a verified period of ACDUTRA; or (3) is otherwise the result of an injury incurred during a verified period of INACDUTRA. (b) As to the diagnosed scoliosis and spina bifida noted on the February 1987 x-ray please address the following: (1) Does the Veteran's scoliosis and/or spina bifida constitute a congenital defect or disease? Generally, for VA purposes, a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." See Quirin, supra. (2) If the scoliosis and/or spina bifida is identified as a congenital defect, please opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during service. If the answer to the above question is "yes," please describe the resultant disability. (3) If the scoliosis and/or spina bifida is identified as a congenital disease, please opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that it was aggravated (worsened) by the Veteran's periods of active service. For purposes of providing these opinions, please accept as true the Veteran's credible reports of experiencing back and neck spasms during active service and being placed on profile during service in Germany as a result of the rigors of service to include marching, lifting and carrying heavy backpacks.. See December 2016 Hearing Tr. at 13, 21. In addressing these questions, the examiner is asked to review and consider the Veteran's service treatment records, to include the February 1987 report of recurrent neck back pain beginning in 1982 and the contemporaneous x-ray, her report of back and neck pain in March 1987, November 1988, and August 1996, and her January 2003 motor vehicle accident. The examiner must provide robust rationales for each opinion. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 7. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of her gynecological disorder. The claims file must be made available to the examiner. All necessary testing should be accomplished. The examiner should address the following: For each gynecological disorder diagnosed, to include PID and fibroids, please opine whether it is at least as likely as not (50 percent probability or more) that such disability: (a) had its onset during service or a verified period of ACDUTRA; (b) is otherwise the result of a disease or injury incurred during active duty or a verified period of ACDUTRA; or (c) is otherwise the result of an injury incurred during a verified period of INACDUTRA. The examiner should consider and address the Veteran's statements and testimony that during active duty she experienced abdominal and pelvic pain which caused her to have a "D&C" at Winn Hospital in Korea. See December 2016 Hearing Tr. at 3. For purposes of providing this opinion, please accept as true the Veteran's credible reports of continuous urinary tract infections, bleeding, and depression during active duty. The examiner must provide robust rationales for each opinion. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 8. Then readjudicate the appeal, considering all evidence associated with the record since the April 2014 SOC. 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 (2012). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs