Citation Nr: 1804734	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-30 050	)	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 wrist disability, to include as secondary to status post tendon laceration of the right fifth finger with scar.  

2. Entitlement to service connection for a bilateral hip disability, to include as secondary to a back disability.  

3. Entitlement to service connection for a bilateral ankle disability, to include pain, fracture, and laceration.   

4. Entitlement to service connection for a sinus disability, to include rhinitis and sinusitis. 

5. Entitlement to service connection for a bilateral knee disability, to include hyperextended knee.  

6. Entitlement to service connection for peripheral neuropathy of the left buttocks.

7. Entitlement to service connection for a neck disability, to include cerebrovascular accident with whiplash and neck pain.  

8. Entitlement to service connection for a back disability, to include contusion posterior occipital area L1-L5 and S1 and cerebrovascular accident with whiplash and neck pain.

9. Entitlement to service connection for a bilateral shoulder disability, to include bursitis with crepitus and rotator cuff pain.

10. Entitlement to service connection for a bilateral foot disability, to include pes planus and onychomycosis but excluding status post Keller bunionectomy left foot with hallux limitus with scar, and as secondary to back and hip disabilities.  

11. Entitlement to service connection for sleep apnea, to include as secondary to asthma.

12. Entitlement to service connection for traumatic brain injury (TBI), to include confusion and loss of memory.

13. Entitlement to service connection for headaches.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from October 1986 to July 1996.

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 Houston, Texas.  Jurisdiction of this case currently rests with the RO in St. Petersburg, Florida.

The Veteran initially filed claims for several specific conditions.  Based on the evidence of record, the claims have since been expanded as noted above.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).

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

In this regard, the Board notes that the Veteran's September 2013 VA Form 9 limited the issues on appeal.  However, the VLJ presiding over the October 2016 hearing identified several other issues as remaining on appeal at that time.  As the Veteran has reason to believe that these issues are also currently on appeal, the Board will thus address all claims as identified above.  See 38 C.F.R. 
§ 20.202 (2017); see also Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has implicitly or explicitly treated it as on appeal and the appellant might have reason to believe it was on appeal).

To date, three issues have been raised by the record that have not been adjudicated by the Agency of Original Jurisdiction (AOJ): (1) Entitlement to an effective date earlier than September 16, 2013, for the award of service connection for posttraumatic stress disorder (raised in March 2016 statement and during the October 2016 hearing); (2) whether new and material evidence has been received to reopen a claim for service connection for a bilateral eye disability, to include dry eye (raised during the October 2016 hearing); and 
(3) entitlement to vocational rehabilitation and employment ( VRE) benefits under Chapter 31, Title 38, of the United States Code (raised in a November 2017 claim).  Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

All claims other than the Veteran's right wrist, bilateral hip, bilateral ankle, and sinus claims are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  During the October 2016 videoconference 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 wrist disability currently pending before the Board; there are no questions of fact or law remaining for the Board to consider.

2.  The Veteran has not been diagnosed with bilateral hip, bilateral ankle, or sinus disabilities at any time during the pendency of this appeal.  


CONCLUSIONS OF LAW

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

2.  The criteria for service connection for a bilateral hip disability have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017).

3.  The criteria for service connection for a bilateral ankle disability have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017).

4.  The criteria for service connection for a sinus disability have not been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal

The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 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 October 2016 videoconference hearing, the Veteran indicated his desire to withdraw the right wrist claim currently pending before the Board.  See transcript, p. 9.  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.

Service Connection

The Veteran is currently seeking entitlement to service connection for a number of disabilities.  

In establishing whether such entitlement is warranted on either a direct or secondary basis, the evidence of record must first establish the current existence of the disability for which service connection is being claimed.  See Shedden v. Principi, 381 F.3d 1163 (2004); see also 38 C.F.R. § 3.310(a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310).

Regrettably, the claims file does not contain such evidence as it pertains to the Veteran's bilateral hip, bilateral ankle, and sinus claims.  

Instead, a June 2010 VA examiner recorded normal clinical and x-ray examination of both hips, such that "there is no diagnosis present today."  Similarly, normal clinical evaluations of the right and left ankles were reported.  In this regard, the examiner observed that avulsion fragments consistent with a remote injury of the right ankle were apparent upon x-ray, but that the remote injury "appears to have healed without any residual," such that there was no history of continuing complaints or treatments indicative of a chronic disabling condition.  Such conclusions are supported by the additional evidence of record, to include extensive VA treatment records which are silent for reports of bilateral hip or ankle disabilities or the treatment thereof.  

In finding that the Veteran has not presented with current bilateral hip or ankle disabilities during the pendency of this appeal, the Board does not disregard his testimony regarding ongoing hip and ankle pain.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, in determining whether a current disability exists, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999).  

Further, the Board observes that the extensive evidence of record is entirely silent for diagnoses or treatment of any sinus disabilities, to include sinusitis or rhinitis, in the approximately 20 years following the Veteran's exit from service.  In this regard, the Board acknowledges that the Veteran has not undergone VA examination for the claimed sinus disability.  However, such an examination is not warranted absent competent evidence of a current disability or persistent or recurrent symptoms of a disability.  38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2016); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  As the record does not contain any such evidence, nor has the Veteran offered testimony to that effect, the Board does not find that such an examination is warranted at this time.

Accordingly, the Board does not find competent evidence of bilateral hip, bilateral ankle, or sinus disabilities existing during the pendency of this appeal.  Accordingly, these claims must be denied and no further discussion concerning in-service incurrence, nexus, or secondary service connection is required.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

VA's Duty to Notify and Assist

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017).  Here, the Appellant has not raised any issues with the duties to notify or assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

ORDER

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

Entitlement to service connection for a bilateral hip disability is denied.

Entitlement to service connection for a bilateral ankle disability is denied.

Entitlement to service connection for a sinus disability is denied.


REMAND

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

At the outset, the Board notes the existence of certain records that may be relevant to the Veteran's claims.  Specifically, the Veteran has reported extensive private treatment pertaining to the claimed knee, neuropathy, neck, back, shoulder, and foot disabilities.  Further, during the October 2016 hearing, the Veteran testified that he had been placed on profile for a back injury during service and had recently received workmen's compensation benefits for a similar injury.  As such, all reasonable efforts must now be made to obtain the identified records, which have not yet been associated with the claims file.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(c) (2017).   

Further, the Veteran underwent VA back, shoulder, and foot examinations in June 2010, July 2010, and August 2013.  However, these examinations are inadequate for the purpose of assessing the Veteran's claims, as the examiners failed to assess the full scope of the Veteran's pertinent in-service history and post-service diagnoses.  As such, new examinations are warranted at this time.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Finally, the Board notes that the Veteran has not yet undergone VA examination in connection with his sleep apnea, TBI, and headache claims.  However, the claims file contains competent evidence of the claimed disabilities and of the Veteran's in-service history of potentially relevant symptoms or events.  See, e.g., VA treatment records generally (recording the Veteran's history of sleep apnea and headaches); hearing transcript (noting Veteran's in-service history of asthma; breathing problems; sleep impairment; exposure to oil fires; and head injury).  Thus, the Board finds that VA examinations are now warranted such that the etiology of the claimed disabilities may be assessed.  38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also McLendon, 20 Vet. App. at 83.

Accordingly, the case is REMANDED for the following actions:

1. Obtain and associate with the record complete military service personnel records for the Veteran, to include any period during which he was placed on profile for a back injury.  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.

2.  Contact the Veteran and request that he identify all private providers of medical treatment for his claimed disabilities since service, and request the Veteran provide authorization for release of all identified private medical records to VA.  All actions to obtain the requested records should be fully documented in the record.  The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile.

If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated.

If possible, the Veteran himself should attempt to obtain the records himself.
3.  Send a letter to the Veteran requesting that he provide evidence related to any workman's compensation claim or claims he filed in conjunction with the back injury reported during the October 2016 hearing.  Inform him that if he does not have such evidence, he should complete a VA Form 21-4142 so that VA can request such evidence and provide him with blank copies of VA Form 21-4142.

4.  Provide the Veteran with the following VA examinations to assess the nature and etiology of the claimed disabilities: (1) Back; (2) shoulder; (3) foot; 
(4) sleep apnea; (5) traumatic brain injury; and 
(6) headaches.  The claims file and a copy of this remand must be made available for review, and the examination reports 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.

Each 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.

a.  The back examiner must indicate the following:

i. Identify all back disabilities demonstrated by the Veteran throughout the course of this appeal.  

ii. For each diagnosis identified, 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.  

In doing so, the examiner must account for each mention of a back injury/treatment in the Veteran's service treatment records, to include in July 1989, February 1993, and July 1993; a 1988 basketball injury; and any time the Veteran was placed on profile for a back condition.  

b.  The shoulder and foot examiners must indicate the following:

i. Identify all shoulder or foot disabilities demonstrated by the Veteran throughout the course of this appeal.  

ii. For each diagnosis identified, 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.  

c.  The sleep apnea examiner must indicate the following:

i. Identify whether the Veteran has demonstrated sleep apnea during the course of this appeal.  

ii. 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, to include in-service exposure to oil fires.  

iii. Additionally, indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was caused or aggravated by his service-connected asthma or the treatment thereof.

d.  The TBI and headache examiners must indicate the following:

i. Identify whether the Veteran has demonstrated TBI or a headache disability during the course of this appeal.  

ii. For each diagnosis identified, 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.  

In doing so, the examiner must account for the Veteran's in-service head trauma as due to a car accident.
  
In formulating the opinions, the examiners are 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.

Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability.

A detailed rationale supporting the examiner's opinion must be provided.  If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

5.  Readjudicate the claims on appeal.  If the benefits sought remain 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 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. §§ 5109B, 7112 (2012).


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

Department of Veterans Affairs