Citation Nr: 18149994 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-30 131 DATE: November 14, 2018 ORDER The appeal for entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is dismissed. The appeal for entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the cervical spine is dismissed. REMANDED Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for a right shoulder condition is remanded. Entitlement to service connection for a bilateral elbow condition is remanded. Entitlement to service connection for a bilateral hip condition is remanded. Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for a bilateral ankle condition is remanded. Entitlement to service connection for migraine and tension headaches is remanded. FINDING OF FACT At the Veteran’s May 2018 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he did not wish to appeal his claims for entitlement to increased ratings in excess of 10 percent for a lumbar spine disability and a cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to an increased rating in excess of 10 percent for a lumbar spine disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal for entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the cervical spine 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 on active duty in the Army from July 1988 to December 2008, including Southwest Asia service in Iraq and Afghanistan. His awards and decorations include the Bronze Star Medal and Combat Infantryman Badge. In May 2018, the Veteran testified before the undersigned at a video conference hearing. Withdrawal of Appeals An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. An appeal may be withdrawn by an appellant or by his representative. 38 C.F.R. § 20.204 (a). Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204 (b). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204 (c). During the May 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issues of entitlement to an increased initial rating for a lumbar spine disability and entitlement to an increased initial rating for a cervical spine disability. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that he was requesting a withdrawal as to those appeals. See Hearing Transcript at 2. The Veteran’s full understanding of the consequences is shown based on the fact that prior to the hearing, the consequences of withdrawal of these claims were fully discussed by the undersigned and the Veteran’s representative. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). REASONS FOR REMAND Although the Board regrets further delay, additional development is required prior to adjudication of the Veteran’s remaining claims. Bilateral Shoulder Condition, Bilateral Elbow Condition, Bilateral Hip Condition, Bilateral Knee Condition, Bilateral Ankle Condition, and Migraine Headaches The Veteran contends that his shoulder, elbow, hip, knee, ankle, and migraine conditions are related to his active duty service, to include documented complaints and treatment for musculoskeletal injuries and a head injury. The Veteran attributes his conditions to his duties as an infantryman and airborne operations, including jumping and marching. The Veteran’s claims for service connection for his shoulder, elbow, hip, knee, ankle, and migraine conditions were previously denied as there was no evidence of current disabilities. The Veteran received VA examinations for these conditions in January 2009 and the examiners did not find any pathology to render current diagnoses or evidence of any residuals of the Veteran’s documented in-service injuries. The medical evidence suggests that the Veteran now has current disabilities for the issues on appeal. Since the January 2009 VA examination, the Veteran has been diagnosed with primary osteoarthritis of the bilateral hips, rotator cuff syndrome of the left shoulder, osteoarthritis of left acromio-clavicular joint, bilateral hip pain, left knee osteoarthritis, rheumatoid arthritis, and generalized headaches. In addition, the Veteran sought treatment in March 2016 for joint pain in his shoulders, elbows, knees, and left ankle, and the assessment was polyarthralgia. As the Veteran now has current diagnoses for his shoulder, elbow, hip, knee, ankle, and migraine disabilities, additional development is required for an adequate determination as to the issues of entitlement to service connection. In May 2018 hearing testimony, the Veteran stated that he had received ongoing treatment for his shoulder, elbow, hip, knee, ankle, and migraine conditions. He further stated that he had headaches since service, which had increased in severity and frequency. On remand, updated VA and private treatment records should also be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. Make two requests for the authorized records from each provider, unless it is clear after the first request that a second request would be futile. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran’s claims file. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral shoulder, elbow, hip, knee, and ankle conditions. The examiner must identify all disabilities present and as to each condition, opine whether it at least as likely as not: (1) began during active service; (2) manifested within one year after discharge from service; or (3) was noted during service with continuity of the same symptomatology since service. The examiner should specifically address whether the Veteran’s conditions are related to the injuries documented in the service treatment records, including his trochanteric bursitis noted at discharge, ankle sprains in February 1997 and May 2006, hip pain in June 1998, groin sprain in March 1996, right elbow locking/pain noted at discharge, and bilateral knee and ankle pain noted at discharge. In offering any opinion, the examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. A clearly stated rationale for any opinion offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general, or there is evidence that, if obtained, would permit the opinion to be provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his currently diagnosed migraine headaches. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability had its clinical onset during service or is related to any incident of service, including the Veteran’s claimed in-service head injury in September 1996, jumps, and treatment for headaches. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Freeman, Associate Counsel