Citation Nr: 18140563 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 15-05 159 DATE: October 3, 2018 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for headaches is granted. Entitlement to service connection for a disorder of the nose is dismissed. Entitlement to service connection for a disorder of the throat is dismissed. Entitlement to service connection for a respiratory disorder is dismissed. Entitlement to service connection for a gastrointestinal disorder is dismissed. Entitlement to service connection for diabetes mellitus is dismissed. REMANDED Entitlement to service connection for chronic joint pain is remanded. Entitlement to service connection for osteoporosis is remanded. Entitlement to service connection for an eye disorder is remanded. Entitlement to service connection for a disorder of the ear is remanded. Entitlement to service connection for hypercholesterolemia is remanded. Entitlement to service connection for high blood pressure is remanded. Entitlement to service connection for a skin disorder, claimed as hives/rash is remanded. Entitlement to service connection for an acquired psychiatric disorder, also claimed as posttraumatic stress disorder, anxiety, major depressive disorder, and sleep disorder is remanded. FINDINGS OF FACT 1. The Veteran’s current lumbar strain has been related by a VA medical opinion to the low back injury experienced by the Veteran during his first period of active service. 2. The Veteran’s headache disorder is related to the environmental hazard exposure he underwent while deployed in Southwest Asia during his active service. 3. In June 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal was requested for the issue of entitlement to service connection for a disorder of the nose. 4. In June 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal was requested for the issue of entitlement to service connection for a disorder of the throat. 5. In June 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal was requested for the issue of entitlement to service connection for a respiratory disorder. 6. In June 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal was requested for the issue of entitlement to service connection for a gastrointestinal disorder. 7. In June 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal was requested for the issue of entitlement to service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar strain are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for withdrawal of the appeal of entitlement to service connection for a disorder of the nose are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal of entitlement to service connection for a disorder of the throat are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of the appeal of entitlement to service connection for a respiratory disorder are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of the appeal of entitlement to service connection for a gastrointestinal disorder are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 7. The criteria for withdrawal of the appeal of entitlement to service connection for diabetes mellitus are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran has served in both the Army and the Army Reserves. He had periods of active service from January 1984 to November 1989, from August 1991 to June 1992, and from November 2004 to January 2006. Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for a low back disability The Veteran contends he has a current low back disability that is causally connected to a back injury he experienced during his active service. The Board concludes that the Veteran has a current diagnosis of lumbar strain that is related to the lumbar strain he experienced in June 1988 during his first period of active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA clinical records show ongoing complaints of back pain during the pendency of this appeal. The May 2016 VA examiner confirmed the presence of lumbar strain and opined that the Veteran’s lumbar strain is at least as likely as not related to an in-service injury, event, or disease. In particular, the Veteran’s service treatment records show he sought treatment in June 1988 after experiencing pain over the week since initially feeling it while being in the field the week prior. He presented with pain and difficulty walking. He was treated with an analgesic balm, heating pad and medication. He went for follow up the next week and was continuing to have back pain. Another undated record within the service treatment records shows lumbar spine strain and he was then treated with Flexeril, Motrin and was to stay in quarters for 48 hours. The VA examiner in May 2016 explained that the service treatment records show evidence of trauma suffered to the lumbar spine in 1988 and the current symptoms are consistent with such an injury. It light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for the Veteran’s low back disability on a direct basis have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Entitlement to service connection for headaches The Veteran contends he has a current headache disorder, which he believes is causally connected to his active service in the Southwest Asia Theater of Operations. The Board concludes that the Veteran has a current diagnosis of migraine headaches and a competent medical professional has opined that the headaches are indeed related to the Veteran’s Southwest Asia service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The Veteran’s DD Form 214 for his November 2004 to January 2006 period of service confirms that he served in Iraq and Afghanistan from December 21, 2004 to December 16, 2005. While the VA clinical records show occasional report of headache, but no specific treatment for migraines, the May 2016 VA examiner took a comprehensive history from the Veteran related to his symptoms. He reported that since his deployment to Iraq, he has suffered from recurrent headaches, two to three times per week. He reported that they require him to lay down in bed as the headaches involve pulsating or throbbing pain on both sides of his head and he experiences nausea and sensitivity to sight and sound. Based upon the Veteran’s report of the history and severity of his symptoms, the examiner concluded that the Veteran has a migraine disorder and that it at least as likely as not was caused by or a result of the environmental hazards he experienced while deployed in Southwest Asia. The Board finds no reason to question the credibility of the Veteran’s report of symptoms and he is indeed competent to report on lay observable symptoms such as headaches. It light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for the Veteran’s headaches on a direct basis have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Withdrawn Claims 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. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204(a). The withdrawal must be in writing except when the appeal is withdrawn on the record at a hearing. 38 C.F.R. § 20.204(b). In June 2018, at the Board videoconference hearing, the Veteran indicated his desire to withdraw of the issues of entitlement to service connection a nose disorder, a throat disorder, a respiratory disorder, a gastrointestinal disorder and diabetes mellitus. As reflected in the transcript, this was accomplished explicitly, unambiguously and with full understanding of the consequences. Accordingly, the Board does not have jurisdiction to review this aspect of the Veteran’s appeal and these issues must be dismissed. The Board recognizes reference to withdrawing an issue related to traumatic brain injury during the hearing; however, no such issue was on appeal. REASONS FOR REMAND The Veteran’s claims for service connection for chronic joint pain, osteoporosis, an eye disorder, an ear disorder, hypercholesterolemia, high blood pressure, a skin disorder and an acquired psychiatric disorder must be remanded. These claims were denied by way of the February 2014 rating decision on appeal. Following the March 2014 notice of disagreement, the Regional Office issued the December 2014 statement of the case, which specifically noted the Veteran’s service treatment records were not available for review. Since that December 2014 statement of the case, the Veteran’s service treatment records were associated with the claims file, the Veteran underwent several VA examinations, including examinations related to the eye claim and psychiatric disorder claim, and more than 800 pages of VA treatment records were added to the claims file. These records were added to the claims file by the Regional Office prior to the certification and transfer of the file to the Board. If the Agency of Original Jurisdiction (AOJ) receives evidence after an appeal is initiated, but before the appeal is transferred to the Board, the evidence must be referred to the appropriate rating or authorization activity for review and disposition. 38 C.F.R. § 19.37(a). If a statement of the case was prepared before the receipt of the additional evidence, a supplemental statement of the case must be furnished to the Veteran and his representative. 38 C.F.R. § 19.31. Thus, in this case, the Board has no choice but to remand these issues in order for the Regional Office to review the evidence received since the December 2014 statement of the case and for any claims as may remain denied, issue a supplemental statement of the case. The matters are REMANDED for the following action: The Veteran’s claims should be readjudicated based on the entirety of the evidence, including a review of all evidence received since the December 2014 statement of the case. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response before returning the claims file to the Board. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Adamson, Counsel