Citation Nr: 18156614 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-18 787 DATE: December 11, 2018 ORDER Service connection for bilateral hearing loss is dismissed. Service connection for tinnitus is dismissed. Service connection for a dorsal neck skin discoloration is granted. REMANDED Service connection for a lumbar spine disability is remanded. Service connection for a bilateral hip disability is remanded. Service connection for a bilateral foot disability is remanded. Service connection for a lung condition is remanded. Service connection for erectile dysfunction is remanded. Service connection for bilateral upper extremity peripheral neuropathy is remanded. Service connection for bilateral lower extremity peripheral neuropathy is remanded. Service connection for major depressive disorder is remanded. A compensable rating for left inguinal hernia residuals is remanded. A compensable rating for a left inguinal hernia scar is remanded. FINDINGS OF FACT 1. During his October 2018 hearing, the Veteran withdrew his claim for service connection for bilateral hearing loss. 2. During his October 2018 hearing, the Veteran withdrew his claim for service connection for tinnitus. 3. Resolving reasonable doubt in the Veteran’s favor, his dorsal neck skin discoloration began during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the claim for service connection for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for service connection for a dorsal neck skin discoloration are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from June 1973 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal June 2014, September 2015 and January 2016 rating decisions. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in October 2016. Notably, the Veteran did not receive a statement of the case (SOC) for his claim for service connection for a bilateral hip disability. He only received a supplemental SOC (SSOC) in June 2016, and did not submit a substantive appeal in response. However, because the Board took testimony on this issue, it is considered part of the current appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009). Also, in addition to the claim for depressive disorder, the Veteran also filed a separate claim for service connection for posttraumatic stress disorder (PTSD). The Board has considered Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), which generally states that claims should not be limited to the diagnoses put forth by a claimant. However, the claim for PTSD was denied in a May 2018 rating decision, and the period for appealing that decision is still active. In addition, the criteria for service connection for PTSD are distinct from those for service connection generally. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Therefore, PTSD will not be addressed in this decision. Withdrawn Issues 1. Bilateral hearing loss 2. Tinnitus 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. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. 20.202. Prior to the promulgation of a decision in this case, the Veteran stated his intent to withdraw his appeal for the above-listed issues from consideration by the Board on the record at his October 2018 hearing. Therefore, a “case or controversy” involving a pending adverse determination that the Veteran has taken exception to does not currently exist with respect to these issues. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). Accordingly, the Board does not have jurisdiction to review the appeal for these claims, and they are dismissed. Service Connection 3. Neck scar The Veteran asserts that, while training with firearms during service, one or more discharged casings landed on the back of his neck and caused a scar. The Board concludes that the Veteran has a current diagnosis of skin discoloration with pruritus that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). September 2014 VA records show the Veteran has a current skin discoloration with pruritus located on the dorsal aspect of his neck. Service treatment records do not specifically document this disability, but an October 1973 service examination does indicate some type of scarring, though the exact notation is not legible. Nevertheless, the Board finds the Veteran to be credible in his assertions given the current disability and in-service record. Therefore, resolving any doubts in his favor, service connection for a dorsal neck skin discoloration is warranted. REASONS FOR REMAND During his October 2018 hearing, the Veteran reported that he was receiving disability payments from the Social Security Administration (SSA). A remand is required to allow VA to request these SSA records, which may be relevant to all of the Veteran’s remaining claims on appeal. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Additional development is also required for specific claims. For the lumbar spine, the Veteran has asserted that his condition is secondary to his service-connected left inguinal hernia residuals. The June 2014 VA opinion stated that spinal analgesia received during the Veteran’s in-service hernia operation was not related to his current lumbar spine disability. However, the examiner did not comment on whether the current hernia residuals caused or aggravated the Veteran’s lumbar spine disability. A new examination should be obtained. For the Veteran’s depression claim, VA records reflect diagnoses of major depressive disorder and generalized anxiety disorder. The record shows that the Veteran relates these disabilities to toxic exposures in service associated with operating a gas station during service, which included some level of exposure to paint odors and benzene. Alternatively, he claims his psychiatric conditions are secondary to his hernia residuals and/or his lumbar spine disability. An examination is necessary to address these contentions. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current lumbar spine disability. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected left inguinal hernia residuals, or (2) aggravated beyond its natural progression by service-connected left inguinal hernia residuals. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his generalized anxiety disorder and major depressive disorder. The examiner must opine whether they are at least as likely as not related to the Veteran’s operation of a gas station in service, which included exposure to paint odor and being near benzene. The examiner must also opine whether they are at least as likely as not (1) proximately due to service-connected left inguinal hernia residuals, (2) aggravated beyond their natural progression by service-connected left inguinal hernia residuals, (3) proximately due to a lumbar spine disability, or (4) aggravated beyond their natural progression by a lumbar spine disability. M. Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel