Citation Nr: 1803835 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-12 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for right upper extremity numbness. 3. Entitlement to service connection for right lower extremity numbness. 4. Entitlement to service connection for left lower extremity numbness. 5. Entitlement to service connection for a left shoulder disability. 6. Entitlement to service connection for left upper extremity numbness, to include as secondary to a left shoulder disability. 7. Entitlement to service connection for erectile dysfunction (ED), to include as due to medication prescribed for treatment of a service-connected wrist disability. 8. Entitlement to service connection for residuals of bilateral eye injuries. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1976 to January 1979 and from March 1981 to March 1984, and also had additional service in the Reserves. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. At the hearing, the Veteran was granted a 60-day abeyance period for the submission of additional evidence. That time period lapsed; no additional evidence was received. The Veteran also initiated an appeal of a denial of service connection for bronchitis. A February 2014 rating decision granted service connection, resolving that matter. The issues of service connection for a left shoulder disability, left upper extremity numbness, ED, and residuals of bilateral eye injuries are being REMANDED to the Agency of Original Jurisdiction (AOJ). The AOJ will notify the Veteran if action is required. FINDING OF FACT On the record during the September 2017 Board hearing, prior to the promulgation of a decision in the matters, the Veteran expressed his intent to withdraw his appeals seeking service connection for bilateral hearing loss, right upper extremity numbness, and right and left lower extremity numbness; there is no question of fact or law in the matters remaining for the Board to consider. CONCLUSION OF LAW With respect to the Veteran's claims of service connection for bilateral hearing loss, right upper extremity numbness, and right and left lower extremity numbness, the criteria for withdrawal of a substantive appeal are met; the Board has no further jurisdiction to consider appeals in the matters. 38 U.S.C. §§ 7104, 7105(d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies to the instant claims. However, given the Veteran's expression of intent to withdraw his appeal, further discussion of the impact of the VCAA on these issues is not necessary. Legal Criteria, Factual Background and Analysis The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative, and must be in writing or on the record at a hearing. 38 C.F.R. § 20.204. On the record during the September 2017 Board hearing, the Veteran indicated that he was withdrawing his appeals seeking service connection for bilateral hearing loss, right upper extremity numbness, and right and left lower extremity numbness. There are no allegations of error of fact or law remaining for appellate consideration as to these issues. Accordingly, the Board no longer has jurisdiction to consider appeals in the matters. ORDER The appeals seeking service connection for bilateral hearing loss, right upper extremity numbness, and right and left lower extremity numbness are dismissed. REMAND A review of the record found that further development is needed for VA to fulfill its duty to assist the Veteran with the development of evidence necessary to substantiate his claims. Initially the Board notes that most of the Veteran's service treatment records (STRs) from his first period of active duty service (January 1976 to January 1979) are not available. See August 13, 2010 Formal Finding on the Unavailability of Veteran's Complete STRs. Therefore, VA has a heightened duty to assist in developing evidence to substantiate the claims. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). However, no presumption, in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer v. Nicholson, 19 Vet. App. at 217. The Veteran contends that he injured his left shoulder during Advanced Individual Training Academy in Aberdeen, Maryland in 1986 . See January 2010 statement. At the September 2017 hearing before the Board he testified that he sustained a left shoulder injury during a period of federalized National Guard service in 1987 or 1988. The record does not contain a Line of Duty Determination for such injury, but the Veteran indicated at the September 2017 Board hearing that he may have a copy. The record contains STRs from his second (1981-1984) period of active duty service and reports of periodic medical examinations from his Reserve service; however, it is not clear whether his service personnel records are available or have been lost. Inasmuch as only active duty (to include ACDUTRA and INACDUTRA) Reserve service is qualifying service to establish line of duty and entitlement to compensation, development of a claim of service connection potentially based on Reserve service must include, inter alia, verification of whether a claimed injury occurred during a recognized period of active duty service. Such development is necessary with respect to the claim of service connection for residuals of a left shoulder injury. It appear that pertinent VA treatment records are outstanding. In a September 2010 statement, the Veteran reported that he has been under VA care/treatment at the Puget Sound VA Medical Center (VAMC) since 1998. The September 2010 rating decision notes that RO "electronically reviewed" the Veteran's Puget Sound VAMC records from June 2000 to September 2010, but "only pertinent records...were printed and placed in [his] file." The Board also notes that the segment of VA treatment records dated December 2002 to May 2013 contains a handwritten note on the front page which states, "Left Shoulder + Bronchitis Records only." With the exception of a May 2013 physical therapy record and a July 2014 emergency room record (both relating to the low back), the file does not contain any records of VA treatment since November 2009. Any existing records of VA treatment for the disabilities at issue (that are not already in the record) are constructively of record, and must be secured. The Veteran also seeks service connection for left upper extremity numbness as secondary to a left shoulder disability. See Board hearing transcript. Notably, on January 2014 VA shoulder examination, he did not report left upper extremity numbness; and a nerve disability was not diagnosed. However, outstanding VA treatment records may show such disability. As the claim of secondary service connection for left upper extremity numbness is inextricably intertwined with the claim of service connection for a left shoulder disability, the issue must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) . The Veteran contends he has ED secondary to medication (namely methadone) prescribed to treat pain associated with his service-connected right wrist disability. A January 6, 2003 VA clinical record notes complaints of low libido (but not erection problems). The provider noted that methadone can contribute to low libido, but also noted that the Veteran was off methadone for three weeks without improvement. [She noted that depression could be a contributing factor, but the Veteran declined a trial of antidepressant medication. She also offered to change the Veteran's hypertension medicine (as he attributed his low libido to antihypertensives); he declined the offer.] During the Board hearing, the Veteran denied discontinuing use of methadone. He has not been afforded a VA examination in conjunction with this claim. As there is competent evidence in the record that prescribed methadone may limit libido, an examination to confirm the Veteran has ED, and if so ascertain its etiology is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran contends that he has residuals of flash burns to both eyes sustained welding while on active duty in the Reserves. He is unsure whether a Line of Duty Determination was made was respect to such injury, but has reported that he was seen at Bremerton Navy Hospital on the day of the injury. See September 2017 hearing transcript. July 1988 and June 1990 treatment records note complaints of a foreign body in the right eye; it is unclear if either record is from Bremerton Navy Hospital; accordingly, complete records of eye treatment at Bremerton Navy Hospital must be sought on remand. Furthermore, the Veteran also testified he received treatment from a VA optometrist one to two weeks prior to the hearing. A report of such treatment is not associated with his record, and must be sought. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) . As the case must be remanded for additional development anyway, the Veteran will have the further opportunity to submit (or identify for VA to obtain) any outstanding (i.e., those not already in the record) records of private treatment he received for the disabilities remaining at issue (and to submit copies of any pertinent Line of Duty Determinations in his possession. Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for an exhaustive search to secure for the record the Veteran's complete service personnel records. The search should encompass all storage facilities where such records may have been retired. If any records are unavailable because they have been irretrievably lost or destroyed, the AOJ should so certify (describing the extent of the development completed), and the Veteran should be so notified and asked to provide copies of all personnel records he has in his possession. 2. The AOJ should ask the Veteran to identify/clarify (by date, location, and unit) the period of alleged ACDUTRA or INACDUTRA when he sustained a left shoulder injury (as he has variably reported such occurred in 1986, 1987, and 1988). Upon his response, the AOJ should arrange for exhaustive development to verify his duty status during such time (i.e., whether he was indeed on active duty, to include ACDUTRA, or INACDUTRA). The verification must be exhaustive, accounting for the specific period when injury in line of duty is alleged to have occurred. The AOJ should make a formal finding in a memorandum for the record as to whether or not the Veteran was on active duty in line of duty (when the alleged injury occurred). 3. The AOJ should secure for the record all records of VA evaluations and treatment the Veteran has received for the disabilities remaining at issue, specifically including from the Puget Sound VAMC since 1998 (and a September 2017 VA optometry visit report). 4. The AOJ should also ask the Veteran to provide identifying information regarding private evaluations or treatment he has received for the claimed disabilities (records of which are not already in the record) and to provide the authorizations necessary for VA to secure for the record complete clinical records of all such evaluations and treatment, and to clarify whether the records in his file noting a foreign body in his eye constitute the complete records of his treatment at Bremerton U.S. Navy Hospital. . The AOJ should secure for the record complete clinical records (those not already associated with the record) from all providers identified (to specifically include additional records from Bremerton U.S. Navy Hospital -if the Veteran indicates that further records from that facility are outstanding). If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 5. After the development requested above is completed, the AOJ should arrange for the Veteran to be afforded a urology examination to confirm whether or not he has ED, and if so, ascertain its likely etiology. The Veteran's record (to include this remand) must be reviewed by the examiner in conjunction with the examination, and any tests or studies indicated should be completed. Based on examination of the Veteran and review of his record the provider should provide responses to the following: (a) Does the Veteran have ED? (b) If the response to (a) is yes, is it at least as likely as not (a 50% or better probability) that the ED is etiologically relater to a period of active duty service (was incurred due to disease or injury therein)? (c) If the answer to (a) is yes, bit to (b) is no, is it at least as likely as not (a 50% or better probability) that the ED was caused or aggravated [The opinion must encompass aggravation.] by medication prescribed in treatment for a service-connected disability (and specifically a right wrist disability)? (d) If the opinion is to the effect that the ED is unrelated to the Veteran's service and was not caused or aggravated by medication prescribed for a service-connected disability, please identify the etiology for the ED considered more likely. Please include rationale with all opinions (to include must comment on the January 2003 VA clinical record that states Methadone can cause ED). 6. The AOJ should then review the record, arrange for any further development suggested by the responses to the development sought above (e.g., an addendum opinion by the January 2014 VA shoulder examiner, or eye or neurology examinations), and readjudicate the remanded claims. If any remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs