Citation Nr: 18145628 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 14-05 128 DATE: October 30, 2018 ORDER The issue of entitlement to service connection for a right shoulder disability is dismissed. The issue of entitlement to service connection for a bilateral knee disability is dismissed. The issue of entitlement to service connection for a bilateral eye condition, to include diabetic retinopathy as secondary to diabetes mellitus, type II, is dismissed. The issue of entitlement to service connection for obstructive sleep apnea is dismissed. The issue of entitlement to service connection for hypertension as secondary to diabetes mellitus, type II, is dismissed. The issue of entitlement to service connection for diabetes mellitus, type II is dismissed. The issue of entitlement to service connection for headaches as secondary to diabetes mellitus, type II, is dismissed. The issue of entitlement to service connection for nerve damage as secondary to diabetes mellitus, type II, is dismissed. The issue of entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to diabetes mellitus, type II, is dismissed. The issue of entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to diabetes mellitus, type II, is dismissed. The issue of entitlement to service connection for peripheral neuropathy of the left lower extremity as secondary to diabetes mellitus, type II, is dismissed. The issue of entitlement to service connection for peripheral neuropathy of the right lower extremity as secondary to diabetes mellitus, type II, is dismissed. The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for radiculopathy of the right lower extremity, as secondary to a low back disability, is remanded. Entitlement to service connection for radiculopathy of the left lower extremity, as secondary to a low back disability, is remanded. Entitlement to service connection for a cervical spine disability, to include as secondary to a low back disability, is remanded. FINDING OF FACT In a November 2017 written statement, prior to the promulgation of a decision in the present appeal, the Veteran withdrew his claims regarding the issues of entitlement to service connection for PTSD, diabetes mellitus, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, nerve damage, hypertension, headaches, obstructive sleep apnea, a bilateral eye disability, a bilateral knee disability, and a right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for a right shoulder condition have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for a bilateral knee disability have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for a bilateral eye condition, to include diabetic retinopathy as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for obstructive sleep apnea have not been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 5. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for hypertension as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 6. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 7. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for headaches as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 8. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for nerve damage as secondary to diabetes mellitus, type II, have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 9. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 10. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 11. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 12. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 13. The criteria for the withdrawal of a substantive appeal regarding the issue of entitlement to service connection for PTSD have been met. 38 U.S.C.§ 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from August 1973 to August 1975, with additional service in the Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, inter alia, denied the Veteran’s claims of entitlement to service connection for PTSD, diabetes mellitus, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, nerve damage, hypertension, headaches, obstructive sleep apnea, a bilateral eye disability; and a June 2013 decision of the RO in Milwaukee, Wisconsin, which, inter alia, denied the Veteran’s claims of entitlement to service connection for a bilateral knee disability and a right shoulder disability. In July 2018, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Withdrawn Issues Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. In a November 2017 written statement submitted prior to the promulgation of a decision in the present appeal, the Veteran withdrew his claims regarding the issues of entitlement to service connection for PTSD, diabetes mellitus, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, nerve damage, hypertension, headaches, obstructive sleep apnea, a bilateral eye disability, a bilateral knee disability, and a right shoulder disability. The Veteran later reiterated his desire to withdraw his claims as to these issues during his July 2018 Board hearing. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. REASONS FOR REMAND Entitlement to service connection for a back disability and radiculopathy of the bilateral lower extremities, as secondary to a low back disability, is remanded. The Veteran asserts that his current back disabilities are related to an injury in service. He also asserts his bilateral lower extremity radiculopathy is related to his back disability. The evidence shows that the Veteran has a current back disability, alternatively diagnosed as spinal stenosis, lumbar spine degenerative disc disease, lumbar spine spondylolisthesis, and lumbar spine intervertebral disc syndrome. The Veteran’s service treatment records show a complaint of backache that was treated between January 20-21, 1975. The Veteran’s discharge examination report reflects a normal spine. Reserve records show the Veteran was treated for a complaint of low back pain moving down the left leg in June 1978. An August 1983 report of medical examination showed a normal spine. Post-service private medical records show the Veteran initially sought treatment for back pain in February 2001. He reported the onset of his back pain was one month ago and it was getting worse. He indicated that there was no known injury. He also reported pain in his bilateral feet, and right leg pain. Additional records show that within two weeks, the Veteran sought treatment for back pain at an emergency department of a different hospital. At that time, he reported the onset of his pain was one month in duration and that he had either fallen or sustained an injury in months past. The clinical impression at this time was acute myofascial strain and acute low back pain. There was no evidence of acute herniated disc or degenerative disc disease at that time, per the clinical notes. The final discharge diagnosis was back pain (not otherwise specified). In February 2013, in support of his appeal, the Veteran submitted a Disability Benefits Questionnaire (DBQ). The clinician reviewed his medical treatment records and provided diagnoses of lumbar spine degenerative disc disease, lumbar spine spondylolisthesis, and lumbar spine IVDS, all with an onset of 1975. The clinician concluded that the Veteran’s low back conditions were at least as likely as not related to his in-service lumbar spine strain. The rationale was that the Veteran’s back pain had been persistent ever since his in-service injury. The Veteran was also afforded a VA compensation and pension examination in May 2013. He reported that during service a box fell on him, hitting him in his back. He stated that he was treated with ice and sent back to work. The examiner concluded that the Veteran’s low back disability was less likely than not related to service. In reaching this conclusion, the examiner noted there was no evidence of any significant injury in service and no evidence of a chronic ongoing condition associated with service. The examiner noted that the first documented complaint of low back pain was in 2001, although an MRI report from a private physician showed a history of back pain starting in 1998. During his July 2018 Board hearing, the Veteran testified that during service a cinder block fell on his back causing extremely sharp pain. He stated that he continued to experience back pain after service and started self-treating the pain in 1977. He denied any post-service back injuries or heavy lifting. The Board finds that an addendum opinion would be most helpful in this case. The Board notes in this regard that both the VA examiner and DBQ clinician appear to have not considered relevant information. The VA examiner did not specifically mention the Veteran’s Reserve records showing one episode of treatment for back pain in 1978. The DBQ clinician’s opinion and rationale do not include consideration of the Veteran’s post-service clinical history beginning in 2001, where he reported a recent onset of back pain with no known injury. Therefore, the appeal is remanded for a medical opinion that considers all the relevant evidence. Finally, as the Board is remanding the issue of service connection for the back disability, the intertwined issue of entitlement to service connection for radiculopathy of the right and left lower extremities is deferred. 2. Entitlement to service connection for the cervical spine disability is remanded. First, during his July 2018 Board hearing, the Veteran and his representative suggested that there are private treatment records and possibly a private opinion that have not been associated with the claims file. Therefore, remand is necessary to obtain any outstanding private treatment records. Second, the Veteran has not been afforded a VA examination to determine the nature and etiology of his cervical spine disability, which he asserts is etiologically related to service on either a direct basis or as secondary to his low back disability. Indeed, during his Board hearing, the Veteran testified that his neck started hurting following his in-service injury to his low back. VA treatment records show degenerative changes of the cervical spine. Given the evidence showing current diagnosis of a cervical spine disability and the Veteran’s testimony concerning its relationship to service and/or a service-connected disability, the Board finds that remand is warranted to afford the Veteran a VA examination concerning the nature and etiology of his claimed cervical spine disability. Accordingly, the matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, identify, obtain, and associate with the claims file any outstanding private medical treatment records, to include any private medical opinions. 2. Obtain a medical opinion on the nature and etiology of the claimed low back disability. The claims file, including a copy of the complete remand, must be provided to the examiner for review. The need for a physical examination is left to the discretion of the examiner. Following a review of the claims file, the examiner is to address the following questions: a) Is it at least as likely as not (a 50 percent probability or greater) that any of the Veteran’s current low back conditions had onset in service or are otherwise related to any injury or event during military service? In answering this question, the examiner is advised of the Veteran’s assertions that his current back conditions are related to an injury for which he was treated in January 1975 (he has testified that a cinder block fell onto his back and he was only treated with ice at the time). The examiner should consider and discuss whether any of the Veteran’s current low back conditions are consistent with the nature of the in-service injury he describes and the contemporaneous treatment provided as well as the subsequent clinical history (to include, but not limited to, the complaints and clinical findings regarding his back pain in the Reserves in 1978, during private medical treatment in February 2001, and thereafter). b) Is it at least as likely as not that any lumbar spine arthritis had onset within a year of discharge from active duty in August 1975? c) Is it at least as likely as not (50 percent or greater probability) that a cervical spine disability had onset in, or is otherwise related to, active service? d) If the examiner determines that a current low back disability had onset in, or is related to service, then is it at least as likely as not (50 percent or greater probability) that his cervical spine disability is either caused by OR aggravated by a current low back disability? Note: The term “aggravation” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must provide a fully-explained rationale for all opinions provided. If any opinion cannot be provided without resorting to speculation, the examiner must explain why. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel