Citation Nr: 18150988 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-00 988 DATE: November 16, 2018 ORDER Entitlement to service connection for rheumatoid arthritis of the back, hips, wrists and ankles is dismissed. Entitlement to service connection for a left rotator cuff injury is dismissed. Entitlement to service connection for fibromyalgia is dismissed. Entitlement to service connection for osteoarthritis of both thumbs is dismissed. Entitlement to service connection for a hiatal hernia is dismissed. Entitlement to service connection for fungus, left great toe, and subsequent surgery is dismissed. Entitlement to service connection for cellulitis, left thigh is dismissed. Entitlement to an evaluation in excess of 10 percent for status-post fracture of left navicular (claimed as chronic wrist pain) is dismissed. REMANDED Entitlement to service connection for degenerative joint disease of the right hip, status-post total hip replacement is remanded. Entitlement to service connection for chronic right wrist pain is remanded. Entitlement to service connection for degenerative arthritis of the left hip, including as secondary to nonservice-connected disability of the right hip is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for flat feet is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C is remanded. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of venereal disease, including herpes, is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for adult attention deficit hyperactivity disorder (ADHD) is remanded. Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety and posttraumatic stress disorder (PTSD) is remanded. Entitlement to an evaluation in excess of 10 percent for lumbar spondylosis is remanded. Entitlement to a compensable evaluation for residual scar, left chest surgery, is remanded. FINDINGS OF FACT 1. During the May 2018 Board of Veterans’ Appeals (Board) hearing, prior to the promulgation of a Board decision, the Veteran requested withdrawal of the appeal of the issues of service connection for rheumatoid arthritis of the back, hips, wrists and ankles, a left rotator cuff injury, fibromyalgia, osteoarthritis of both thumbs, a hiatal hernia, fungus, left great toe, and subsequent surgery, and cellulitis, left thigh, as well as entitlement to an evaluation in excess of 10 percent for status-post fracture of left navicular (claimed as chronic wrist pain). CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for rheumatoid arthritis of the back, hips, wrists and ankles have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a left rotator cuff injury have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for fibromyalgia have not been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for osteoarthritis of both thumbs have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for a hiatal hernia have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for fungus, left great toe, and subsequent surgery have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 7. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for cellulitis, left thigh have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). 8. The criteria for withdrawal of the appeal of the issue of entitlement to an evaluation in excess of 10 percent for status-post fracture of left navicular (claimed as chronic wrist pain) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Dismissals 1. Entitlement to service connection for rheumatoid arthritis of the back, hips, wrists and ankles. 2. Entitlement to service connection for a left rotator cuff injury. 3. Entitlement to service connection for fibromyalgia. 4. Entitlement to service connection for osteoarthritis of both thumbs. 5. Entitlement to service connection for a hiatal hernia. 6. Entitlement to service connection for fungus, left great toe, and subsequent surgery. 7. Entitlement to service connection for cellulitis, left thigh. 8. Entitlement to an evaluation in excess of 10 percent for status-post fracture of left navicular (claimed as chronic wrist pain). Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn by the Veteran or representative on the record at a hearing, or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. At his May 2018 Board hearing, the Veteran’s representative indicated the Veteran was withdrawing the 8 issues listed above on appeal. The May 2018 withdrawal of the claims during the Board hearing was an express statement by the Veteran’s representative. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues on appeal. Accordingly, the Board does not have jurisdiction to review the issues and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for degenerative joint disease of the right hip, status-post total hip replacement is remanded. 2. Entitlement to service connection for degenerative arthritis of the left hip, including as secondary to nonservice-connected disability of the right hip is remanded. The Veteran seeks entitlement to service connection for disabilities of each hip. He has described that his duties in service as a Weapons Mechanic required frequent stooping, bending and lifting. He has related a history of hip pain in and since service. Under these circumstances, a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for adult attention deficit hyperactivity disorder (ADHD) is remanded. 4. Entitlement to service connection for an acquired psychiatric disability, to include depression, anxiety and posttraumatic stress disorder (PTSD) is remanded. The Veteran had service in Vietnam. He claims that he has a psychiatric disability, to include PTSD, depression, anxiety and PTSD attributable thereto. He also claims service connection for ADHD. VA records document assessments of anxiety, depression, and PTSD symptoms. The Veteran has reported having been in fear of hostile military activity during his service in Vietnam. Accordingly, a VA examination is warranted. Id. 5. Entitlement to an evaluation in excess of 10 percent for lumbar spondylosis is remanded. The Veteran was last examined in August 2013 to ascertain the severity of his low back disability. At his May 2018 Board hearing, he testified that the range of motion in his low back had become more restricted since the August 2013 VA examination. Although the Board is not required to remand a claim because of the passage of time since an otherwise adequate examination, when it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the claim is remanded to afford him a new VA examination. 6. Entitlement to a compensable evaluation for residual scar, left chest surgery is remanded. At his May 2018 Board hearing the Veteran indicated that his residual scar of the left chest had manifested by numbness. The August 2013 VA examination revealed no such indications. Given the indication that the symptoms of the residual scar have worsened, a new VA examination is warranted. Id. 7. Entitlement to service connection for chronic right wrist pain is remanded. 8. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for flat feet is remanded. 9. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C is remanded. 10. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for residuals of venereal disease, including herpes is remanded. 11. Entitlement to service connection for erectile dysfunction is remanded. At his Board hearing, the Veteran related that he had received additional VA treatment since the last upload of his VA treatment records. VA is under a duty to make as many requests as are necessary to obtain records in the custody of a Federal department or agency. 38 C.F.R. § 3.159 (c)(2). Upon remand, these records should be sought. See 38 U.S.C. § 5103A(c) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Lastly, the Board notes that following the Veteran’s initial period of service in the United States Air Force from February 1966 to February 1970, he served in the California Air National Guard. The Veteran’s periods of ACDUTRA have yet to be verified. Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a). The matters are REMANDED for the following action: 1. Contact the appropriate agency, which may include the California Adjutant General, the Defense Finance and Accounting Services (DFAS) and the National Guard Bureau for verification of all periods of the Veteran’s service in the California Air National Guard. In particular, the inclusive dates (by day, month, and year) of active duty, ACDUTRA and INACDUTRA should be verified. Reports of retirement points do not contain the necessary information in this regard. 2. Obtain up-to-date VA treatment records of the Veteran, not currently associated with the claims file, particularly any dated after approximately January 9, 2018, and associate them therewith. Conduct any ensuing additional development, as necessary, and document negative results. Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination(s) to address the etiology of any disability of the hips. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder must be made available for review in conjunction with the opinion. The examiner should address the following questions: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran incurred a disability of either hip disability during service or that any such disability is otherwise attributable to service? b) If the examiner determines that one hip, but not the other, is attributable to service, the examiner is asked to address whether it is at least as likely as not (a 50 percent probability or greater) that any hip disability caused a disability of the other hip, or aggravated (that is, permanently worsened) a disability of the opposing hip beyond natural progression. If the examiner finds aggravation, the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation The examiner is advised that the term “as likely as not” does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. “More likely” and “as likely” support the contended causal relationship or a finding of aggravation; “less likely” weighs against the claim. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination for the purpose of ascertaining the, presence, nature and likely etiology of any diagnosed psychiatric disability, to include PTSD, depression, anxiety and ADHD. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to the service treatment records, lay assertions, and the pertinent medical evidence. The examination report should note that the claims file was reviewed. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disability is attributable to service. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. 5. After the development directed in paragraph 2 has been completed to the extent possible, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected lumbar spondylosis. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examination report should specifically state the degree of disability present in the thoracolumbar spine and his current range of motion in this spinal segment and the presence or absence of unfavorable or favorable ankylosis. Any neurological abnormalities associated with the service-connected low back disability should be discussed. The extent of any weakened movement, excess fatigability and pain on use, should be described. To the extent possible, the functional impairment due to weakened movement, excess fatigability, and pain on use should be assessed in terms of additional degrees of limitation of motion. Range of motion studies should be conducted. The examiner is asked to elicit from the Veteran a complete history of any flare-ups of his lumbar spondylosis. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the disability. The examiner should describe the additional loss, to include in degrees, if possible or sufficiently explain why any additional functional loss cannot be described or quantified. The examiner should also provide information concerning the functional impairment that results from the lumbar spine disability that may affect the ability to function and perform tasks in a work setting. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 6. After the development directed in paragraph 2 has been completed to the extent possible, schedule the Veteran for a VA scars examination, to include a complete physical examination and interview of the Veteran, to ascertain the extent and severity of his service-connected left chest scar. All required tests should be performed and all applicable diagnoses must be fully set forth. The claims folder must be available for review by the examiner in conjunction with the examination and this fact should be acknowledged in the report. (Continued on the next page)   A complete rationale for any opinion expressed should be provided by the examiner. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak