Citation Nr: 18142396 Decision Date: 10/16/18 Archive Date: 10/15/18 DOCKET NO. 15-07 835 DATE: October 16, 2018 ORDER Entitlement to service connection for a bilateral shin splints is dismissed. Entitlement to total disability based on individual unemployability (TDIU) is dismissed. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a low back disability is remanded. FINDING OF FACT In his hearing before the Board in February 2018, the Veteran withdrew, on the record, his appeal of the denials of service connection for bilateral shin splits; increased rating for PTSD; and entitlement to TDIU. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from May 2006 to October 2006, and was deployed in active duty service from March 2008 to April 2009 and July 2009 to May 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision. The Veteran testified before the undersigned during a February 2018 hearing. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by his or her authorized representative on the record during a hearing before the Board or in writing. 38 C.F.R. § 20.204(b). A written withdrawal must include the name of the appellant, the file number, and a statement that the appeal is withdrawn. Id. In the present case, the Veteran withdrew his appeal of the denial of service connection for bilateral shin splints, an increased rating for PTSD, and entitlement to TDIU on the record during the February 2018 hearing before the Board. He had also previously submitted a written statement in February 2017 requesting withdrawal of the PTSD appeal. The Veteran has clearly and unambiguously withdrawn these appeals. Therefore, the Board does not have jurisdiction to review the appeal of these issues, and they are dismissed. REASONS FOR REMAND VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). Here, a VA examination in November 2012 for the Veteran’s knees indicated that the examiner could not provide an opinion regarding a nexus between the Veteran’s current knee condition and injuries in service due to a lack of documentation. Subsequent examinations in 2016 provided additional medical evidence regarding the Veteran’s current condition, but only stated that the Veteran’s knee condition was not the result of an exposure event during service in Southwest Asia. This opinion did not address whether trauma sustained in service is related to the Veteran’s current condition. A nexus opinion regarding the relationship between the Veteran’s current knee pain and his claimed in-service injuries is required to make a fully informed decision in this case. Furthermore, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In this case, the Veteran provided documentation of a Pre-Deployment Health Assessment before his period of deployment starting March 2008, but only the first page is provided in the record, which does not document the Veteran’s responses to health questions or the existence or results of any examination that may have been provided. Evidence shows that the Veteran was involved in a motor vehicle accident in late 2007 that resulted in lower back injuries that continued into his period of deployment. Service records also show that he suffered injuries in service that could have exacerbated this injury. Though a September 2012 VA examiner opined that the Veteran’s low back condition was not caused by injuries in service, the examiner noted the reports of this pre-existing injury and failed to discuss whether the Veteran’s condition was aggravated beyond its natural progression by injuries sustained in service. Similarly, the Veteran’s medical records consistently show that he began experiencing locking and pain in his knees in 2007 before his active duty deployment. This is confirmed by a private hospital record that shows treatment for knee pain months before he first deployed. As there is evidence of a knee injury that existed prior to active service, an opinion regarding whether this injury was aggravated beyond its natural progression is necessary to reach a decision in this case. Based on the incomplete service records available, it unclear whether the Veteran was examined prior to deployment in March 2008. If the Veteran was not examined, that means the presumption of soundness does not apply to this period of active service. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Proper assessment of the Veteran’s claims requires exhaustive attempts to obtain these records. Though a formal finding of unavailability for the Veteran’s service records is shown in the case file, it also appears additional records were located after this finding was filed. For this reason, the Board finds it appropriate to renew efforts to obtain outstanding service records in this case. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the Veteran’s file. 2. Obtain the Veteran’s outstanding service personnel records and service treatment records and associate them with the Veteran’s file. 3. Ask the Veteran to supply complete copies of any service records in his possession, including a complete copy of his 2008 Pre-Deployment Health Assessment (DD-2795). 4. After obtaining outstanding service records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including injuries sustained in the convoy attacks reported by the Veteran. If an examination prior to the Veteran’s active service starting in March 2008 noted a pre-existing knee condition or if no examination is found and the examiner determines that the evidence shows a pre-existing knee condition, the examiner must also opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. In reviewing the record, the examiner should consider all relevant medical evidence of record, to include: (a.) August 2006 outpatient report documenting knee pain; (b.) April 2007 medical center record documenting complaint of bilateral knee pain; (c.) December 2007 nurse’s note relating history of bilateral knee pain; (d.) February 2008 physical profile for bilateral knee pain; (e.) July 2009 pre-deployment health assessment ; (f.) June 2012 Social Security Administration (SSA) records; (g.) October 2013 orthopedic consultation assessing bilateral chondromalacia patella; and (h.) October 2014 left knee arthroscopy with synovitis. 5. After obtaining outstanding service records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any spine disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including injuries sustained in the convoy attacks reported by the Veteran. If an examination prior to the Veteran’s active service starting in March 2008 noted a pre-existing low back condition or if no examination is found and the examiner determines that the evidence shows a pre-existing low back condition, the examiner must also opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service. The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. In reviewing the record, the examiner should consider all relevant medical evidence of record, to include: (a.) February 2008 letter from Dr. T.B. documenting treatment following motor vehicle accident; (b.) Service treatment records and sick slips starting May 2008 documenting treatment and physical therapy for low back pain in service; (c.) July 2009 pre-deployment health assessment; (d.) November 2011 clinical report following motor vehicle accident; (e.) June 2012 SSA records ; (f.) October 2012 VA treatment records showing treatment for low back pain, claimed as chronic; (g.) October 2013 private orthopedic consultation; and (h.) November 2016 spine x-rays. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel