Citation Nr: 1803947	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  14-11 117A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a disorder manifested by bilateral ankle pain.

2.  Entitlement to service connection for a disorder manifested by bilateral knee pain.

3.  Entitlement to service connection for rheumatism of the left and right legs.

4. Entitlement to service connection for a disorder manifested by lower back pain.

5.  Entitlement to higher initial rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling from August 30, 2010.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from June 1999 to October 2004.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In April 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge that was conducted by videoconference.  A transcript of the hearing is of record.  

The Board also notes that an August 2013 rating decision denied service connection for depression and hearing loss to which the Veteran submitted a timely notice of disagreement (NOD).  See 12/11/13 NOD.  A statement of the case (SOC) was issued in August 2015, but the Veteran did not perfect an appeal of these claims and they were not certified for appellate consideration and are not currently before the Board.

In April 2017, the Veteran submitted two incomplete and unsigned application forms for Vocational Rehabilitation (VR) benefits.  See 4/13/17 VA 28-1900 Disabled Veterans Application for Vocational Rehabilitation; 4/20/17 VA 28-1900.  It is unclear if he wishes to pursue a claim for these benefits.  The issue of entitlement to vocational rehabilitation benefits has been raised by the record in the April 2017 claim forms, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

The issues of entitlement to service connection for a disorder manifested by lower back pain and an increased initial rating for PTSD are addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

On April 12, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, at his Board hearing, that a withdrawal of his appeal for service connection for disorders manifested by bilateral ankle and knee pain and rheumatism of the left and right legs is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant have been met as to the claims for service connection for disorders manifested by bilateral ankle and knee pain and rheumatism of the left and right legs.  38 U.S.C. § 7105(b)(2), (d)(5) (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.A. § 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.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the appellant has withdrawn his appeal as to his claim for service connection for disorders manifested by bilateral ankle and knee pain and rheumatism of the left and right legs and, hence, there remain no allegations of errors of fact or law for appellate consideration as to that matter.  See 4/12/17 Hearing Transcript, page 2. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.


ORDER

The appeal as to the claim for service connection for a disorder manifested by bilateral ankle pain is dismissed.

The appeal as to the claim for service connection for a disorder manifested by bilateral knee pain is dismissed.

The appeal as to the claim for service connection for rheumatism of the bilateral legs is dismissed.


REMAND

Low Back Disorder

The Veteran asserts that he has a low back disorder that was incurred during active service.  He variously attributes his back disorder to lifting a heavy log during basic training, and carrying a 50-pound rucksack for long walks every other month for five years.  See April 2017 Board hearing transcript at pages 3-4; 8/13/12 NOD.  The Veteran testified that he sought medical treatment after he lifted the log and felt back pain, and was placed on kitchen duty that was less rigorous.  No profile was issued and he subsequently resumed his regular duties as a machinist.  See April 2017 hearing transcript at page 4.  His back pain continued over the years and he treated it with over the counter medication until it worsened and he sought medical treatment in 2010, when muscle spasms were diagnosed.  Id. at 5.  After his 2011 VA examination, the Veteran's back pain worsened for which he had three emergency room visits between 2012 and 2013.  Id. at 7-11.

Service treatment records show that, in July 1999, the Veteran gave a history of back pain for three weeks and was diagnosed with a muscle strain.  See 10/23/04 STR Medical, pages 81-82.  An April 2004 Post-Deployment Health Assessment notes his report of back pain.  Id. at 70-72.  The Veteran denied having back pain when examined for separation in September 2004 and a spine abnormality was not noted by the examiner.  Id. at 12.

Post service, a January 2011 VA examiner reported that X-rays of the Veteran's lumbosacral spine showed satisfactory alignment of vertebral bodies, normal facets, and that disc space was maintained.  The examiner observed that there was no mention of a back disability on the Veteran's discharge examination.  According to the examiner, there can be trauma-induced arthritis as a result of impact to the joints involved, but recent X-rays bore no evidence of it.  The examiner concluded it was less likely as not that the Veteran's current problem with his back was related to active service.

The AOJ reviewed evidence not currently available to the Board.  The January 2014 SOC indicates that a February 24, 2012 X-ray report from William Beaumont Army Medical Center shows evidence of degenerative disc disease of the Veteran's thoracolumbar spine.  See 1/21/04 SOC, pages 1, 23.  The Board is unable to locate the X-ray report in the Veteran's claims file.  

Here, as the record shows that the Veteran reportedly has current degenerative disc disease of the thoracolumbar spine, and he describes its onset in service, the Board finds that a new medical opinion or examination is warranted to determine whether the Veteran's lumbar spine disability is related to service.

The Veteran testified to receiving emergency room treatment for his back disorder at the VA medical facility in El Paso.  See April 2017 Board hearing transcript at page 11.  However, in his August 2012 NOD, he reported seeking emergency treatment in January 2012 at the William Beaumont Army Medical Center.  See 8/13/12 NOD.  There are no VA or non-VA medical records in the claims file.  Efforts should be to obtain all medical records regarding the Veteran's treatment for a low back disability at the VA medical center (VAMC) in El Pasco and the William Beaumont Army Medical Center prior to appellate consideration of his claim.  VA has a duty to obtain relevant records.  38 U.S.C. § 5103A (b),(c) (2012).

PTSD

The December 2011 rating decision granted service connection for PTSD that was assigned an initial 30 percent rating from August 30, 2010.  The Veteran submitted a NOD as to this decision in August 2012.  See 8/27/12 NOD.  The Board is required to remand this issue so that a SOC can be provided.  38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 241 (1999).

Accordingly, the case is REMANDED for the following action:

1. Issue a SOC regarding the matter of entitlement to an initial rating higher than 30 percent for PTSD from August 30, 2010.  Do not certify or return this issue to the Board, unless the Veteran submits a timely substantive appeal.

2. Associate the February 24, 2012 X-ray report of the Veteran's thoracolumbar spine from William Beaumont Army Medical Center with his electronic claims file.

3. Obtain all medical records regarding the Veteran's treatment for a low back disability at the William Beaumont Army Medical Center and El Paso VAMC since 2010.  If any requested records cannot be obtained, the appellant must be notified of the attempts made and of what additional actions will be taken with regard to his claim.

4. After completing the development requested above (in #1-3), schedule the Veteran for a VA examination by a physician to determine whether any current low back disability is the related to a disease or injury in active service.  The examiner should note that the claims file, including this remand, was reviewed so as to become familiar with the Veteran's pertinent medical history. Then, address the following:

a. Does the Veteran have a current low back disorder, including degenerative disc disease of the thoracolumbar spine, or another low back disorder?

b. If so, did the Veteran's current low back disorder (any such disorder diagnosed since 2010) at least as likely as not have its onset in service or is it otherwise the result of a disease or injury in service (including the notations in the July 1999 and April 2004 service treatment records, reflecting complaints of back pain)?

c. The examiner is to provide a comprehensive rationale.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 

d. The absence of evidence of treatment for low back problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 

e. The examiner is advised that the Veteran is competent to report in-service low back problems, his symptoms and history, and such reports, including those of a continuity of low back symptoms since service, must be specifically acknowledged and considered in formulating any opinions.

5. If any benefit on appeal remains denied, then issue a supplemental statement of the case.  Thereafter, the case should be returned to the Board, if in order.

The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs