Citation Nr: 18157958 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-44 783 DATE: December 14, 2018 ORDER The appeal seeking entitlement to service connection for emphysema is dismissed. Service connection for a disability of the bilateral legs is denied. REMANDED Entitlement to service connection for a lumbosacral strain (claimed as back condition) is remanded. Entitlement to service connection for depression, to include as secondary to a low back condition, is remanded. Entitlement to service connection for a disability of the bilateral feet, to include as secondary to a low back condition, is remanded. Entitlement to service connection for a thoracic aortic aneurysm is remanded. FINDINGS OF FACT 1. At the May 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran and his attorney notified the Board that he wished to withdraw the appeal for the issue of entitlement service connection for emphysema. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral leg disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for entitlement to service connection for emphysema have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for service connection for bilateral leg disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1972 to June 1975. The Veteran testified before the Board in a videoconference hearing in May 2017. At the videoconference hearing, the record was held open for 90 days for the submission of additional evidence. In June 2018, the Veteran’s attorney submitted additional medical evidence. Withdrawn Issue The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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 Veteran or by his authorized representative. 38 C.F.R. § 20.204. At the May 2017 Board hearing, the Veteran, through his attorney, withdrew on the record the appeal for entitlement to service connection emphysema. See May 2017 hearing transcript. Notably, it was explained to the Veteran at the hearing that no further action would be taken to address his claim, and he expressed his agreement. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303(a). Service connection may also be granted for any disease diagnosed after separation from service, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Generally, to establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury (or in-service aggravation). Holton v. Shinseki, 557 F.3d 1362, 1355 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a disability of the bilateral legs is denied. The Veteran contends he has a bilateral leg condition that was incurred in service. It is noted that on the Veteran’s May 1975 service separation report of medical history, he indicated having a history of cramps in his legs. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, despite the notation of leg cramps in his May 1975 service separation report of medical history, the Veteran does not have a current diagnosis of bilateral leg disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, a December 2013 VA examiner evaluated the Veteran and determined that he did not have a diagnosis of a bilateral leg disability; therefore, it was less likely as not that the Veteran had a bilateral leg disability that was caused by or the result of the complaints of cramps in his legs that were noted on the May 1975 service separation report of medical history. In making this determination, the December 2013 VA examiner acknowledged that private treatment records were not available for review. The VA examiner explained that the Veteran had indicated he would submit such records; however, at the time of the addendum medical opinion, none had been received. The Veteran subsequently submitted a copy of his private treatment records in December 2016. The Board reviewed these records and they do not show a diagnosis of a bilateral leg condition. While the Veteran believes he has a current diagnosis of bilateral leg disability and testified to having symptoms of a bilateral leg disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education/knowledge of the interaction between multiple organ systems in the body/the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the appellant’s claim for service connection, that doctrine is not applicable. See 38 U.S.C § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a lumbosacral strain (claimed as back condition) is remanded. The Veteran contends he suffers from a back condition following an in-service automobile accident. Specifically, he theorized that he was struck in his back by a 55-pound radio when the vehicle he was riding in flipped over. See transcript. The Veteran underwent a VA examination in December 2013. At that time, he was diagnosed with a lumbosacral strain and the examiner noted a diagnosis of Scheurmann’s kyphosis disease, which the examiner found to be a pre-existing condition. The examiner explained this disease was mostly found in teenagers. Moreover, the examiner noted that at the time of the examination, the Veteran declined undergoing x-rays of the back to avoid being exposed to additional radiation. Instead, he was to provide his private medical treatment records. However, the examiner did not receive the private records, and therefore, did not have the opportunity to review x-rays of the back. The examiner opined the Veteran’s low back condition was less likely as not caused by or the result of the in-service injury. In addition, it was the examiner’s opinion that the low back condition Scheurmann’s kyphosis disease was not aggravated beyond its natural progression by the vehicle accident in-service. See examination. At the VA examination and again in the May 2017 Board hearing, the Veteran contended that he did not have a pre-existing low back condition. He testified that he would not have been able to perform basic training if he had had a pre-existing condition. However, following his accident, he testified he required various painkillers and needed bedrest for at least two months. After service, he continued to have moderate to extreme pain on a daily basis. Additionally, the Veteran testified that he would be willing to undergo necessary x-ray or MRI testing in order to properly diagnose his medical conditions at a supplemental VA examination. See transcript. Following the Board hearing, the Veteran submitted a February 2018 medical statement from Dr. N.M., who reported that MRIs completed in 2009 and 2014 showed mild degenerative changes at L4-S1. Dr. N.M. also stated, however, that she could not say for sure whether the military incident was the cause of the Veteran’s back condition without review of the service treatment records. See statement. Unfortunately, the 2009 and 2014 MRI of the back referenced by Dr. N.M. is not currently of record and a remand is required to obtain this evidence. Additionally, in light of the hearing testimony and new evidence submitted from the Veteran’s private physician, the Board finds a supplemental VA opinion is required to determine whether there is clear and unmistakable evidence that the Veteran’s Scheurmann’s kyphosis disease pre-existed his service, and if not, whether his mild degenerative changes of the back were caused by or related to his in-service motor vehicle accident. If the necessary MRI imaging needed to diagnose his condition is not available for review, the Veteran testified he would be willing to undergo such testing. 2. Entitlement to service connection for depression, to include as secondary to a low back condition, is remanded. The Veteran also testified at the May 2017 Board hearing that he suffers from depression secondary to his low back disability and the ongoing difficulties it has presented in his life; in particular, his difficulty in maintaining a job to earn money and afford insurance to take care of his medical condition. He testified he presently takes medication nightly for his depression but was not in counseling or obtaining additional treatment. See transcript. On December 2013 VA examination, the Veteran was diagnosed with a persistent depressive disorder and it was indicated that some of his depression may be related to his physical conditions (back pains) but no definitive source of his depression could be determined with any level of scientific certainty at that time. See examination. Because the Veteran contends his depression is directly caused by his low back disability, which is pending adjudication, these claims are inextricably intertwined and must be remanded together. 3. Entitlement to service connection for a disability of the bilateral feet, to include as secondary to a low back condition, is remanded. While the medical evidence of record, including the Veteran’s private treatment records and the December 2013 VA examination report, do not show a diagnosis for a disability of the bilateral feet, the Veteran testified at the May 2017 hearing that he does not have control over his feet. He indicated he had tripped and fallen as a result of his lack of control. See transcript. The December 2013 VA examiner noted the Veteran declined x-rays of his feet and his private medical records were not available for the examiner to review when rendering the opinion. As previously discussed, the Veteran testified he is willing to undergo necessary x-rays, if necessary, and if they are not available in his private treatment records. Therefore, the Board finds a supplemental VA examination is necessary to determine if the Veteran has a present diagnosis related to his bilateral feet. 4. Entitlement to service connection for a thoracic aortic aneurysm is remanded. The Veteran contends he suffered an aneurysm in December 2003. He described the event as a spontaneous one. The Veteran also testified that his surgeons said they could not say for certain but the accident in service might have attributed to the aneurysm. See transcript. While listed among the Veteran’s medical history, it is unclear from the record whether the Veteran has a present disability related to his thoracic aortic aneurysm and, if so, whether it could be caused by or related to his in-service accident. In giving the Veteran the benefit of the doubt, the Board finds a medical examination is necessary prior to adjudicating this claim. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Grant Family Medical Practice. Make two requests for the authorized records from Grant Family Medical Practice, unless it is clear after the first request that a second request would be futile. Specifically, records from 2009 to the present are requested. 2. After the above records development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back condition. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including an in-service automobile accident. Furthermore, the examiner is asked to opine whether any such back condition clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including his in-service automobile accident. 3. After the above records development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral feet disability. The examiner must first determine whether the Veteran has a diagnosis for the bilateral feet (to include whether his accounts of tripping and falling as a result of his lack of control in his bilateral feet represents a finding of functional impairment) and, if so, opine whether it is at least as likely as not related to an in-service injury, event, or disease and whether it is at least as likely as not (1) proximately due to a low back condition, or (2) aggravated beyond its natural progression by a low back condition. 4. After the above records development is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any thoracic aortic aneurysm. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the in-service automobile accident. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel