Citation Nr: 18147772 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-33 337 DATE: November 6, 2018 ORDER Service connection for diabetes is dismissed. Service connection for anxiety is dismissed. Service connection for mood disorder is dismissed. REMANDED Service connection for left shoulder disorder is remanded. Service connection for back disorder is remanded. Service connection for right ankle disorder is remanded. Service connection for right leg sciatica is remanded. Service connection for asthma characterized as a cough disorder, to include as due to undiagnosed illness, is remanded. Service connection for skin disorder, to include as due to undiagnosed illness, is remanded. Service connection for brain disease due to trauma also characterized as head trauma, to include as due to undiagnosed illness, is remanded. Service connection for dementia also characterized as confusion, to include as due to undiagnosed illness, is remanded. Service connection for headaches, to include as due to undiagnosed illness, is remanded. Service connection for fatigue also characterized as sleeping, to include as due to undiagnosed illness, is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested as to the claim of service connection for diabetes. 2. Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested as to the claim of service connection for anxiety. 3. Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested as to the claim of service connection for mood disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant have been met as to the issue of service connection for diabetes. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal by the appellant have been met as to the issue of service connection for anxiety. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal by the appellant have been met as to the issue of service connection for mood disorder. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1982 to July 1992, to include service in Southwest Asia during the Gulf War. At his June 2018 hearing before the undersigned Veterans Law Judge, the issues were clarified and are accurately reflected in this decision. DISMISSAL Service connection for diabetes, anxiety and mood disorder 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 appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant withdrew the appeal as to these issues at his June 2018 hearing before the undersigned. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed as to these three issues. REASONS FOR REMAND 1. Service connection for left shoulder disorder is remanded. 2. Service connection for back disorder is remanded. 3. Service connection for right ankle disorder is remanded. 4. Service connection for right leg sciatica is remanded. The Veteran testified that he received injuries in service that led to these current disabilities. He asserted that he does now in fact have current left shoulder, back, right ankle and right leg sciatica disorders. It is noted that his service treatment records have not been associated with the record, and he believes that an additional attempt should be made by VA to locate the official records because they could contain documentary evidence in support of his claims. The Veteran testified at length that he played basketball and boxed at a high skill level for his unit because he was talented in these sports. He received injuries during these activities. He reports he was kept in basic training extra days because his command wanted the benefit of his boxing and basketball skills. He reported that he was young and felt pressured not to complain extensively about his physical health during service but that he did visit sick call for some of the conditions for which he seeks service connection. Following the hearing, the Veteran submitted buddy statements attesting to observing the Veteran suffering orthopedic injuries (including back and ankle) while playing basketball and going to sick call. He also submitted records to support his assertion that his MOS in service involved heavy physical labor. In light of the above, an additional attempt should be made to obtain the Veteran’s service treatment records, in order to fulfill VA’s duty to assist. Even if they cannot be located, the attempts to locate them should be documented in the record. Also, the Veteran should be asked to provide any additional records in support of his claims, to include any service treatment records he may have in his possession. Further, the Board cannot make a fully-informed decision on these issues because no VA examiner has considered the entirety of the record, to include any obtainable service treatment records, the extensive credible testimony of the Veteran, and the additional post-hearing evidnce, and opined whether the Veteran has any current left shoulder, right ankle, back disorders, or right leg sciatica, related to service or service-connected disability. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Prior examaintions conducted in 2014 are not fully adequate as they do not address the additional credible and pertinent evidence added to the record since that time. 5. Service connection for brain disease due to trauma also characterized as head trauma, to include as due to undiagnosed illness, is remanded. 6. Service connection for dementia also characterized as confusion, to include as due to undiagnosed illness, is remanded 7. Service connection for asthma characterized as a cough disorder, to include as due to undiagnosed illness, is remanded. 8. Service connection for skin disorder, to include as due to undiagnosed illness, is remanded. 9. Service connection for headaches, to include as due to undiagnosed illness, is remanded. 10. Service connection for fatigue also characterized as sleeping, to include as due to undiagnosed illness, is remanded. The Veteran asserts that these disabilities are due to incidents in service or, in the alternative, are manifestations of undiagnosed illness or a medically unexplained chronic multisystem illness related to his Gulf War service. For a veteran who had active service in the Southwest Asia theater of operations during the Persian Gulf War (a Persian Gulf veteran), presumptive service connection may be established for a qualifying chronic disability, which includes a medically unexplained chronic multisymptom illnesses (such as CFS or fibromyalgia). See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. In addition, service connection may be established for a qualifying chronic disability that cannot be attributed to a known clinical diagnosis, specifically for an undiagnosed illness. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. 38 C.F.R. § 3.317 provides that "objective indications of a qualifying chronic disability" are required and also includes an example list (that is not limited to the examples provided) of signs or symptoms that may be manifestations of undiagnosed illness, which includes fatigue. The Veteran testified that he was exposed to open burn pits, uranium tanks and various environmental hazards during the Gulf War. Service personnel records show he was in Southwest Asia and received medals related to service in Kuwait and Saudi Arabia. Also, as to headaches, head trauma and dementia or confusion, he testified both that he hit his head on his bunk and was the victim of a possible ‘blanket party’ attack that required hospitalization for two days early on in service. He woke up in the hospital. Again, no service treatment records are associated with the claim. In June 2018, the Veteran submitted a signed form NA 13055, request for information needed to reconstruct medical data in an attempt to obtain the records of his alleged emergency treatment for his reported head injury in 1984. As with the other issues being remanded, an attempt should be made by VA to locate the official service treatment records because they may well contain documentary evidence in support of his claims. Even if they cannot be located, the attempts to locate them should be documented in the record. Also, the Veteran should be asked to provide any additional records in support of his claims, to include any service treatment records he may have in his possession. Moreover, the Board cannot make a fully-informed decision on these issues because no VA examiner has considered the entirety of the record, to include any obtainable service treatment records and the extensive credible testimony of the Veteran, and opined whether the Veteran has any current asthma characterized as a cough disorder, skin disorder, headaches, head trauma, dementia or confusion, or fatigue characterized as sleeping, that is related to service or service-connected disability or is a manifestation of undiagnosed illness or medically unexplained chronic multisymptom illness related to Gulf War service. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Prior examinations conducted in 2014 are not fully adequate as they do not address the additional credible and pertinent evidence added to the record since that time. The matters are REMANDED for the following action: 1. Obtain all available service treatment records through official channels. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide them. 2. Obtain all available, outstanding VA and any identified private treatment records for the claims on appeal. 3. Then, schedule the Veteran for VA examinations to determine the nature and etiology of all left shoulder, back, right ankle and right leg sciatica disorders present during the pendency of the claim. The examiner must opine whether any such disability present is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s playing basketball or boxing or other rigorous activities associated with his duties. The examiner must opine whether any such disability at least as likely as not (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must opine whether any such disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. Review of the entire claims file is required. The examiners should consider the Veteran’s contentions that his symptoms of these disorders began in-service and are related to his service. The Veteran is considered a reliable historian to the extent that his statements do not contradict anything actually documented in the record. See June 2018 hearing transcript. 4. Then, schedule the Veteran for VA examinations to determine the nature and etiology of all asthma characterized as a cough disorder, skin disorders, headaches, head trauma, dementia or confusion, or fatigue characterized as sleeping disorders present during the pendency of the claim. After reviewing the claims file and examining the Veteran the examiner is asked to answer the following questions: a. Are the Veteran's symptoms of any of these alleged conditions a sign of an undiagnosed illness or undiagnosed chronic multi-symptom illness? b. If not, identify all the specific disorders of asthma characterized as cough condition, skin rash, headache disorder, head trauma, dementia or confusion, or fatigue characterized as sleeping present during the pendency of this claim. c. Is it at least as likely as not (a fifty percent probability or greater) that any of the Veteran's disorders of asthma characterized as cough condition, skin disorder, headache disorder, head trauma, dementia or confusion, or fatigue characterized as sleeping is related to active service, to include environmental hazards exposed to in Southwest Asia? If not, address whether any such disability (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. If not, address whether any such disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. Review of the entire claims file is required. The examiners should consider the Veteran's contentions that his symptoms of these disorders began in-service and are related to his service in Southwest Asia. The Veteran is considered a reliable historian to the extent that his statements do not contradict anything actually documented in the record. See June 2018 hearing transcript. (Continued on the next page)   5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL