Citation Nr: 1807330 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-32 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a right hip disability, to include as secondary to a right knee disability. 4. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service connected back disability and to include as secondary to a right knee disability, a left knee disability and/or a right hip disability 5. Entitlement to an initial compensable disability rating for bilateral hearing loss disability. REPRESENTATION Veteran represented by: George Sink, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the evidentiary record. In February 2016, the Board remanded the matter for further development and VA examinations. In December 2017, the Veteran requested that his claim for entitlement to an initial compensable disability rating for bilateral hearing loss be withdrawn. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. In December 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal for his claim for entitlement to an initial compensable disability rating for bilateral hearing loss disability. 2. The Veteran's acquired psychiatric disorder is at least as likely as not caused by service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met for his claim for entitlement to an initial compensable disability rating for bilateral hearing loss disability. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Appeal 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 (2012). 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 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In December 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal for his claim for entitlement to an initial compensable disability rating for bilateral hearing loss disability. Specifically, the Veteran indicated that he consented to the withdrawal and that he understood the consequences of this decision. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for the Veteran's claim for entitlement to an initial compensable disability rating for bilateral hearing loss disability and it is dismissed. II. Service Connection A claimant is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Board finds that the criteria for service connection for an acquired psychiatric disorder have been met. First, there is no dispute that the Veteran has a current diagnosis of an acquired psychiatric disorder. A June 2017 VA examination contains diagnoses of major depressive disorder, recurrent, moderate, with anxious distress; obsessive compulsive disorder; alcohol use disorder in full sustained remission for 15 years, secondary to depression; and panic disorder (episodic paroxysmal anxiety) without agoraphobia. The June 2017 VA examiner opined that the Veteran's current acquired psychiatric disorder was at least as likely as not proximately due to or the result of a service-connected condition. Specifically, the examiner explained that the Veteran's depression was at least as likely as not exacerbated by reported in-service injuries. The reported in-service injuries include non-service-connected right and left knee injuries and right hip injury, as well as service-connected degenerative disc disease, thoracolumbar spine ("back disability"). The examiner explained that these in-service injuries exacerbated the Veteran's past feelings of depression and deepened those feelings because the Veteran's limited physical condition prohibited him from joining in the activities in which his soldier friends were able to engage. As such, the examiner stated that the Veteran felt like he had failed others in his platoon and that he was disappointed in himself. The examiner stated that the Veteran's depression in service followed the Veteran into his work life. The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Notably, in this case, the June 2017 VA examination is unclear in distinguishing between symptoms caused by the Veteran's non-service-connected right and left knee and right hip injuries and those caused by his service-connected back disability. Resolving reasonable doubt in the Veteran's favor, for the purposes of this decision, the Board will consider all of the Veteran's acquired psychiatric disorder symptoms to be related to his service-connected back disability in the adjudication of this claim. Based on the foregoing, the Board finds the evidence for and the evidence against the Veteran's claim is in relative equipoise, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's acquired psychiatric disorder is related to his military service. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that a grant of service connection for an acquired psychiatric disorder is warranted on a secondary basis due to the Veteran's service-connected back disability. ORDER The appeal is dismissed for the Veteran's claim for entitlement to an initial compensable disability rating for bilateral hearing loss disability Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service connected back disability and to include as secondary to a right knee disability, a left knee disability and/or a right hip disability is granted. REMAND The Veteran contends that he currently suffers from right knee, left knee, and right hip disabilities as a result of traumatic injuries sustained in February 1974 auto accident while on active duty. See August 2010 Form 9; February 2012 request for physical. In the February 2016 Board remand, the Board required the RO to conduct substantial development with respect to acquiring additional records for the Veteran's claims. The RO acquired the Veteran's service treatment records and service personnel records from the National Personnel Records Center (NPRC). See June 2016 service treatment records; June 2016 military personnel records. The Veteran notified the RO that he did not receive any treatment at VA medical centers (VAMC). See April 2017 report of general information. In March 2016, the Veteran notified the RO that he did not have any more records to provide. See March 2016 correspondence. However, in November 2015, the Veteran submitted a signed release for records from 1997 to the present from Northwest Hospital and Medical Center where the Veteran received long-term medical treatment for his knees. See November 2015 authorization for release of information; November 2015 hearing transcript, p. 16. While the RO requested that the Veteran submit another release for Northwest Hospital and Medical Center in March 2016, it is reasonable to conclude that the Veteran believed his submission of the November 2015 signed release addressed this issue. Review of the claims file does not show that any RO request for these records was sent to the Northwest Hospital and Medical Center and that these records have not been associated with the claims file. In addition to requesting and acquiring service treatment records from the NPRC, the RO requested additional service treatment records directly from Madigan Army Medical Center for the period from February 1972 to February 1975. However, due to an incorrect social security number and a missing date of birth on the records request, the hospital could not find the Veteran's records and requested that the RO resubmit a corrected form. See January 2017 information re veteran in uniformed hospital or dispensary; February 2017 information re veteran in uniformed hospital or dispensary. To date, the RO has not acquired these additional service treatment records. Accordingly, on remand the AOJ conduct additional record development and then afford the Veteran a new orthopedic examination to determine the nature and etiology of his current right knee disability, left knee disability, and right hip disability, to include a discussion of all diagnoses of record, and considering the theory of secondary service connection as appropriate. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request medical records from Northwest Hospital and Medical Center from 1997 to present and Madigan Army Hospital from February 1972 to February 1975. All obtained records should be associated with the evidentiary record. Efforts to obtain these records should be documented in the record. 2. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with an appropriate examiner to determine the nature and etiology of all current right knee, left knee, and right hip disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should elicit a full history from the Veteran. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer his/her opinion with supporting rationale as to the following inquiries: a) Please identify with specificity all right knee, left knee, and right hip disabilities which are currently manifested, or which have been manifested at any time since January 2009. The examiner should specifically note the diagnoses of osteoarthritis in the right knee, left knee, and right hip by Dr. R.S.C. The examiner is also asked to clarify whether a meniscal condition of the left knee is diagnosed. See April 2013 VA examination report. b) For each right knee, left knee, and right hip diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the disability was either incurred in, or is otherwise related to, the Veteran's active duty service? The examiner should specifically consider the Veteran's complaint of swollen or painful joints upon his separation from service; the Veteran's testimony that he has experienced pain, a lack of range of motion, and swelling since a motor vehicle accident during service; and the Veteran's testimony that his private orthopedist, Dr. R.S.C., has said it is possible that the Veteran's current problems could have been caused by hitting his knees into the metal dashboard during the in-service accident. c) For each right hip diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the disability was caused by the Veteran's right knee disability? The examiner should specifically address the April 2013 VA examination report in which the Veteran stated that his problems began in his right knee and progressed up, and that in 1979 his right hip began to hurt. d) For each right hip diagnosis, is it at least as likely as not (i.e. probability of 50 percent or greater) that the disability is aggravated by the Veteran's right knee disability? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. If the examiner cannot provide an opinion, the examiner must confirm that all procurable and assembled data and information was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 3. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs