Citation Nr: 18149702 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 15-41 695 DATE: November 13, 2018 ORDER Entitlement to service connection for hearing loss is dismissed. Entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. Entitlement to an initial rating in excess of 10 percent for otitis externa is dismissed. Entitlement to an initial rating in excess of 10 percent for hemorrhoids is dismissed. Entitlement to service connection for a right shoulder disorder is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for a thoracolumbar spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for a left shoulder disorder is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disorder is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for shin splints is remanded. Entitlement to service connection for a cervical spine disorder is remanded. FINDINGS OF FACT 1. In December 2017, the Veteran, through his representative, informed the Board that he desired to withdraw his appeal for service connection for bilateral hearing loss and increased ratings for tinnitus, otitis externa, and hemorrhoids. 2. The Veteran was diagnosed with right shoulder arthritis during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran with respect to the issues of entitlement to service connection for bilateral hearing loss and entitlement to increased initial ratings for tinnitus, otitis externa, and hemorrhoids have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2018). 2. The criteria for service connection for a right shoulder disorder have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 2004 to June 2006, April 2010 to June 2011, March 2012 to March 2013, and September 2015 to September 2016. Withdrawal of Appeal An appeal may be withdrawn by an appellant or his or her authorized representative 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 (2018). In a December 2017 statement, the Veteran withdrew his appeal with respect to the issues of entitlement to service connection for bilateral hearing loss and entitlement to increased initial ratings for tinnitus, otitis externa, and hemorrhoids. Hence, there remains no allegation of error of fact or law for appellate consideration with respect to these issues, and they must be dismissed. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2018). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). The Board finds that the evidence of record supports a grant of service connection for arthritis of the right shoulder based on the August 2010 in-service diagnosis of degenerative joint disease of the right shoulder. There is no competent evidence that the arthritis predated the period of active service that began in April 2010. Thus, the Board finds service connection is warranted for right shoulder arthritis. REASONS FOR REMAND Claims for increased initial rating for a thoracolumbar spine disability, left lower extremity radiculopathy, a left shoulder disability, and a left knee disability and service connection for sleep apnea, right and left foot disorders, right and left ankle disorders, a cervical spine disorder, and shin splints are remanded. In February 2016, December 2016, and January 2017, additional service treatment records were associated with the record. VA treatment records were also associated with the record in March 2017, and a VA “shoulder” examination record was associated with the record in April 2017. A Supplemental Statement of the Case was not issued after the additional evidence was obtained. There is no basis for a waiver of RO consideration of the additional evidence under 38 C.F.R. § 20.1304 (2018) because the new evidence was not submitted by the Veteran. Pursuant to 38 C.F.R. § 19.37 (2018), a Supplemental Statement of the Case is required unless the evidence is: (1) duplicative; (2) discussed in an earlier Statement of the Case or Supplemental Statement of the Case or; or (3) irrelevant to the issues on appeal. Here, the evidence is new and not duplicative of previously received evidence. Additionally, it was not considered in the October 2015 or February 2016Statement of the Case. Additionally, the evidence is relevant to the issues on appeal. Accordingly, these issues must be remanded for the issuance of an Supplemental Statement of the Case. See 38 C.F.R. § 19.31 (2018). The evidence indicates there may be outstanding relevant VA treatment records. VA treatment records from July 9, 2018, February 15, 2018, January 11, 2018, August 19, 2017, and June 24, 2017 indicate that unidentified non-VA records, non-VA physical therapy records, and non-VA chiropractic records were scanned into VistA Imaging. To date, it does not appear that the referenced records have been associated with the claims folder. A remand to obtain these records is required. The Veteran’s last VA examinations for his thoracolumbar spine disability, left lower extremity radiculopathy, and left knee disorder were in March 2014. As the Board must remand the claims for other development, on remand, he should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of these disabilities. A March 2018 statement from Dr. D. B. indicates that the Veteran’s sleep apnea could be related to his service-connected diabetes. Although a claim for secondary service connection is reasonably raised, the Board cannot make a fully-informed decision on the issue because no VA examiner has opined whether the Veteran’s sleep apnea is related to his service-connected diabetes. Accordingly, an addendum opinion is warranted. Finally, based on the evidence of in-service treatment for shin splints, foot, ankle, and cervical spine symptoms, the Board finds the record would benefit from VA examinations to determine whether the Veteran has current disorders related to his document in-service treatment. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records and the VistA Imaging records referenced in the July 9, 2018, February 15, 2018, January 11, 2018, August 19, 2017, and June 24, 2017 VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After records development is completed, schedule the Veteran for a VA thoracolumbar spine examination to determine the current severity of his thoracolumbar spine disability and associated left lower extremity radiculopathy. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s thoracolumbar spine disability and associated left lower extremity radiculopathy should be reported. 3. Schedule the Veteran for a VA knee examination to determine the current severity of his left knee disorder. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the left knee disorder should be reported. 4. Forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's sleep apnea. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was caused by his service-connected diabetes? (b.) If not caused by the service-connected diabetes, is it at least as likely as not that the Veteran's sleep apnea is worsened beyond natural progression (aggravated) by his service-connected diabetes? If the clinician finds that the Veteran's sleep apnea was aggravated by his service-connected diabetes, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the sleep apnea. A complete rationale should be provided for all opinions and conclusions expressed. 5. The Veteran should be afforded appropriate VA examinations to determine the nature of his claimed (a) shin splints, (b) right and left foot disorders, (c) right and left ankle disorders, and (d) cervical spine disorder and to obtain opinion as to whether such are possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. For each diagnosed disorder, the examiner(s) should state whether it is at least as likely as not (50 percent probability or greater) that the disorder first manifest in active service, was aggravated by active service, or is otherwise related to service. The examiner(s) must provide a complete rationale for all opinions expressed, with consideration of the Veteran’s in-service treatment for shin splints and foot, ankle, and neck symptoms. If an examiner is unable to provide any required opinion, the examiner should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. J. A. Anderson Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Snyder, counsel