Citation Nr: 1808417	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-31 034	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to nonservice-connected disability pension benefits.

2.  Entitlement to service connection for the residuals of traumatic brain injury (TBI).

3.  Entitlement to service connection for a headache disability.

4.  Entitlement to service connection for a cervical spine disability.

5.  Entitlement to service connection for a lumbar spine disability.

6.  Entitlement to service connection for radiculopathy to the left lower extremity.

7.  Entitlement to service connection for a left knee disability.

8.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and Spouse


ATTORNEY FOR THE BOARD

T. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from February 1979 to February 1983.  He had a period of active duty for training from January 1978 to April 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).  In November 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).



The issues of entitlement to service connection for residuals of TBI, headache, cervical spine, lumbar spine, left lower extremity, and left knee disabilities and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

At his hearing in November 2017 the Veteran withdrew his appeal as to the issue of entitlement to nonservice-connected disability pension benefits.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal for entitlement to nonservice-connected disability pension benefits by the appellant have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

In the present case, the appellant has withdrawn his appeal for entitlement to nonservice-connected disability pension benefits.  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 and it is dismissed.



ORDER

The appeal for entitlement to nonservice-connected disability pension benefits is dismissed.


REMAND

Additional development is required as to the issues remaining on appeal.  The evidence of record includes a February 2013 private medical opinion attributing a TBI, headaches, left knee, low back, neck, and left sciatic radicular pain to injuries sustained in service.  There was discussion of a back injury occurring from a rough parachute landing, a knee injury stemming from a fall while ice skating, and a head injury when the Veteran passed out on a C-130 aircraft.  At his personal hearing, he added his contention that his back, neck, and related problems were the cumulative result of making  numerous parachute jumps.  

VA examinations in December 2013 found no evidence of TBI, cephalgia, back disorder, neck disorder, or knee disorder in service.  The Veteran's low back and related radiculopathy and knee problems were attributed to his excessive weight.  An opinion could not be rendered with respect to his cervical spine disorder because there was no documentation of a related neck injury.  Similarly, with respect to the Veteran's claimed TBI and headaches, the examiner indicated that there was no documentation of either in the service treatment records.

The VA orthopedic opinion is flawed to the extent that the examiner did not appear to consider the Veteran's history of making 79 parachute jumps and the documented cervical sprain in August 1982.  He also seemed to have dismissed the documented medial collateral ligament sprain in May 1980 without explanation.  The TBI examiner did not appear to consider an undated report (approximately 1980) noting a head injury with unconsciousness for an unknown period of time without evidence of closed head trauma.


The private opinion is also flawed.  The examiner did not address Social Security Administration (SSA) records dated in July 2013 showing the Veteran reported he had blacked out at work resulting in a head injury.  The medical records associated with his SSA claim include a June 2013 private treatment report noting a one year history of migraine headaches.  The examiner also appears to rely on an undocumented parachute accident.  His findings with respect to the in-service knee injury are similarly unsupported by the record.

Neither the private nor VA medical opinions included adequate rationale for the provided opinions.  Thus, in light of the conflicting opinions as to etiology, the Board finds that additional development is required for adequate determinations as to the Veteran's service connection claims.

The Board also notes that at his November 2017 hearing the Veteran testified that a VA mental health provider, Dr. D.P., told him that his service-connected disabilities were the main reason he could not work.  The available VA treatment records include no reports indicating such an opinion, but treatment records last obtained in December 2015 show the Veteran was receiving on-going treatment for his posttraumatic stress disorder.  

VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).  The Board notes that a contemporaneous examination is required when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect."  38 C.F.R. § 3.327(a) (2017).  The Board finds that the available evidence does not indicate any material change in the Veteran's service-connection disabilities since they were last evaluated, but that VA treatment record identified as possibly pertinent to his TDIU claim should be obtained to assist him in substantiating the claim.  Additional medical opinions, however, are required as to his service connection claims and up-to-date VA treatment records should be obtained.



Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Obtain all pertinent VA medical records not yet associated with the appellate record, to include such records created since December 2015.

2.  Obtain clarifying VA medical opinions as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has present residuals of TBI, headache, cervical spine, lumbar spine, left lower extremity, or left knee disabilities that:

a. had its onset in service, or
b. is etiologically related to his active service.

The examiner must acknowledge review of the pertinent evidence of record, to include reports of injuries sustained before, during, and after service.  Of note, the examiner should address the clinical significance of the Veteran's history of making 70+ parachute jumps, the documented cervical sprain in August 1982, the documented medial collateral ligament sprain in May 1980, and an undated report (approximately 1980) noting a head injury with unconsciousness for an unknown period of time.  The findings of the January 2013 report from Dr. Yokum should also be addressed.

All necessary examinations, tests, and studies should be conducted.

Rationale for the requested opinion shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question.

3.  Thereafter, the AOJ should address the issues remaining on appeal.  If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or 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 A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs