Citation Nr: 1807575	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-12 899	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for post-traumatic stress disorder with depression (PTSD).

3.  Entitlement to service connection for a lumbar spine condition. 

4.  Entitlement to service connection for right hand residuals of frost bite.

5.  Entitlement to service connection for left hand residuals of frost bite.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Z. Maskatia, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 2004 to January 2006.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

A travel hearing was held by the undersigned Veterans Law Judge in August 2017.  A transcript of this hearing is of record.

The Veteran has applied for service connection for a left hand disorder and a right hand disorder.  Given the common symptomatology of these claims, however, they will be treated as a single claim for purposes of this decision.

The issue of entitlement to service connection for a left hand disorder and a right hand disorder is addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  At his hearing before the Board on August 22, 2017, prior to the promulgation of a decision in the appeal, the Veteran requested that his claims for entitlement to service connection for bilateral hearing loss and a psychiatric disorder be withdrawn.  

2.  The Veteran does not have a currently diagnosed lower back disability.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issues of entitlement to service connection for bilateral hearing loss and a psychiatric disorder have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2014); 38 C.F.R. § 20.204 (2017).

2.  The criteria for service connection for a lower back disability have not been met.  38. U.S.C. §§ 1101, 1111, 1131, 5100, 5102, 5103, 5103A (2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017).  Here, the duty to notify was satisfied by way of a letter sent in October 2012.

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017).  The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained.  The RO has obtained, or made all required attempts to obtain, the Veteran's VA treatment records, service treatment records, VA examination reports, military personnel records, and statements from the Veteran.  Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none.  Hence, the Board is satisfied that the duty-to-assist was met.  Id.

Hence, no further notice or assistance is required to fulfill VA's duty to assist.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Withdrawal

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 (2014).  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 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  In the present case, the appellant withdrew his claims for service connection for bilateral hearing loss and a psychiatric disorder during his hearing in August 2017.  The remaining claims on appeal are disposed in the remainder of this decision.  Hence, there remain no allegations of errors of fact or law for appellate adjudication.  Accordingly, the claims for bilateral hearing loss and a psychiatric disorder are dismissed.  

Service Connection

The Veteran is seeking service connection for a back disorder which he contends was incurred during service through construction related duties.  

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2014).  Generally, 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 between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C. §§ 1112 , 1113 (2014); 38 C.F.R. §§ 3.307 (a)(3) (2014), 3.309(a) (2017). 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology for diseases that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a) (2017).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Veteran's claim for service connection for a back disorder must be denied because the evidence does not show that the Veteran has a current back disability.  

First, the Veteran's service treatment records show no treatment for or symptoms of any relevant condition indicative of a back disorder.  Notably, the Veteran's December 2005 separation examination certifies that the Veteran was deemed acceptable for discharge, and that besides some hearing loss, he had no medical problems.  The Veteran, at his August 2017 hearing, testified that he has never sought treatment for his back, during or after service.  Consequently, there is no record of his receiving treatment.

Next, despite the Veteran's complaints of back symptoms, service connection also cannot be granted because there is no current disability.  The Veteran testified in his August 2017 hearing that he has not been diagnosed with a back disorder.  Further, he was advised to seek a medical opinion relating his symptoms to service; the Veteran did not submit any such records.  Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110  (2014); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability).  "In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Here, because the Veteran has never sought treatment for his back disorder, and admits that he does not have a current diagnosis, no current disability is shown by the record.


ORDER

The issues of entitlement to service connection for a psychiatric condition and for bilateral hearing loss are dismissed.

Entitlement to service connection for a back disorder is denied.


REMAND

Unfortunately, further development is required before the Board can adjudicate the issue of the Veteran's entitlement to service connection for a bilateral hand disorder.

The Veteran asserts bilateral hand symptoms including tingling and numbness, which he asserts began within months of service.  Specifically, the Veteran asserts that all soldiers in basic training were recurrently required to remove their gloves in formation in frigid temperatures, as collective punishment for some soldiers neglecting to bring their gloves to formation.  If these symptoms are indicative of current disorders, it is possible that they are related to service.  As such, a new VA examination is necessary to determine any such link.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran testified at his hearing that he has not yet visited a doctor for his symptoms because he was trained to manage his symptoms independently.  Moreover, during service, the Veteran felt that the doctors on call were not adequately trained to treat his symptoms.  However, unlike his back disorder, the Veteran is competent to diagnose a disorder such as cold injury residuals, as this is a disorder that may be identified solely through its symptoms.  At the very least, his statements are sufficient to trigger the need for a VA examination.  Given the above evidence, a VA examination is required to determine the existence and etiology of any bilateral hand disabilities. 

Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding treatment records from the VA Medical Center in Denver, Colorado, and any VA facility from which the Veteran has received treatment.

If the Veteran has received additional private treatment beyond the examination of record, he should be afforded an appropriate opportunity to submit records of that treatment. 

2.  Schedule the Veteran for an examination by an appropriate medical professional in order to determine the nature, extent, onset, and etiology of the Veteran's bilateral hand disability.  The claims folder, to include a copy of this remand, should be made available to and reviewed by the examiner.  All indicated studies should be performed and all findings should be reported in detail.

The examiner should specifically provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's bilateral hand disability had its onset in, or is otherwise etiologically related to, his active service.

3.  After the above actions are completed, if the claims are not fully granted, a supplemental statement of the case should be issued on all issues currently on appeal, and the claims file should be returned to the Board for further appellate consideration.  

The appellant has the right to submit additional evidence and argument on the matter 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 (2014).




______________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs