Citation Nr: 1804893 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-22 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a thoracolumbar spine disorder. 3. Entitlement to service connection for a cervical spine disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to service connection for a left ankle disorder. 6. Entitlement to service connection for a left foot disorder, to include as secondary to a thoracolumbar spine disorder.. 7. Entitlement to service connection for left ear hearing loss. 8. Entitlement to service connection for an acquired psychiatric disorder, claimed as lack of sleep. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD EM Lederman, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1997 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript is of record. The issues have been broadened and recharacterized as reflected on the title page. The issue of entitlement to service connection for an acquired psychiatric disorder 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). FINDING OF FACT At the August 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal concerning the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as lack of sleep. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal concerning the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as lack of sleep, are met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Withdrawal may be made in writing or on the record at a hearing by the veteran or by an authorized representative. 38 C.F.R. § 20.204. The Veteran's perfected appeal included a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as lack of sleep. However, the Veteran and her representative expressly withdrew this issue from appellate consideration on the record at the beginning of the August 2017 Board hearing. See August 2017 Hearing Transcript (Tr.) at 2. As there is no allegation of error of fact or law for Board consideration on these issues, the Board does not have jurisdiction to consider the appeal of these matters, and they must be dismissed. ORDER The appeal concerning the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as lack of sleep, is dismissed. REMAND The Veteran maintains that her back, neck, right and left knee, left ankle, and left foot problems are the result of heavy lifting during her time in service, including significant amounts of time carrying a fully loaded backpack, weighing approximately 60-70 pounds. See August 2017 Hearing tr. at 7. She claims that her neck problems to an injury she sustained while playing softball in October 1997. Id. at 3. Additionally she attributes her bilateral knee problems to frequently going up and down ladders. Id. at 3 and 10. Finally, the she claims her left foot disability is secondary to her back disorder. Id. at 12. The Board finds that the low threshold to obtain an examination is met for the back, right and left knee, left ankle, and left foot claims on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, an August 2013 VA opinion finding no nexus between the Veteran's neck problems and her in-service injury is inadequate, as the examiner did not address the Veteran's continuous complaints of neck problems since the in-service injury and the cumulative impact of her duties, noted above. Thus, on remand, an addendum opinion is needed. Updated VA treatment records and any private treatment should also be secured on remand, to include any records that may demonstrate the presence of a current left ear hearing loss disability for VA purposes. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records, to include any records demonstrating the presence of a current left ear hearing loss disability for VA purposes. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of any back, right and left knee, left ankle, and left foot disabilities. The examiner should also provide an addendum opinion on diagnosed neck strain. The entire claims file should be made available to the examiner. All indicated studies should be performed, and all findings should be reported in detail. Following a review of the claims file, the examiner is asked to address the following: (a) Identify all disabilities involving the Veteran's back, right and left knees, left ankle, and left foot. (b) For each back, right and left knee, left ankle, and left foot disability so diagnosed, please opine as to whether it is at least as likely as not (50 percent or better probability) that such disability had its onset in service or is otherwise related to service, to include as a result of the cumulative impact of the Veteran's duties in service, which included frequently handling of heavy cargo and other heavy lifting, carrying a fully loaded backpack, weighing approximately 60-70 pounds, and climbing ladders while in service. Please see the Board hearing transcript for additional information in this regard. Please also consider the Veteran's reports of continuous back, right and left knee, left ankle, and left foot pain since service. (c) With regard to neck strain diagnosed in the August 2013 VA examination, please opine as to whether it is at least as likely as not such disability had its onset in service or is otherwise the result of service, to include as a result of (1) the cumulative impact of the Veteran's duties in service, which included frequently handling of heavy cargo and other heavy lifting, carrying a fully loaded backpack, weighing approximately 60-70 pounds, and climbing ladders while in service (please see the Board hearing transcript for additional information in this regard); or (2) the Veteran's reports of a whiplash-type injury after being hit on the side of the face with a ball and glove while playing softball in October 1997 (please refer to the hearing transcript). Please also consider the Veteran's reports of continuous neck pain since service. (d) If and only if a back disability is service-connected as a result of these inquiries, please also opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed left foot disorder: (1) is proximately due to the Veteran's back disability; or (2) has been aggravated (permanently worsened) by the Veteran's back disability. A thorough rationale and explanation for the conclusions reached should be set forth. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. Merely saying he or she cannot respond will not suffice. 4. Then, after taking any additional development deemed necessary, readjudicate the issue on appeal. 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). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs