Citation Nr: 1817463 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-39 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for left shoulder arthritis. 2. Entitlement to service connection for bilateral wrist arthritis. 3. Entitlement to service connection for degenerative arthritis of the spine. 4. Entitlement to service connection for left hip arthritis. 5. Entitlement to service connection for bilateral knee arthritis. 6. Entitlement to service connection for residuals of a facial injury. 7. Entitlement to service connection for a cerebrovascular accident (CVA or stroke). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Bayles, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1966 to April 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, a Travel Board hearing was held before the undersigned; a transcript is in the record. Claims seeking service connection for right shoulder and left arm disabilities were raised by the Veteran at the October 2017 Travel Board hearing but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these claims, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of service connection for arthritis of the spine, left hip, and both knees and for residuals of a facial injury are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action is required. FINDINGS OF FACT 1. On the record at the October 2017 Travel Board hearing, prior to the promulgation of a Board decision in the matter, the Veteran requested withdrawal of his appeals seeking service connection for left shoulder arthritis and bilateral wrist arthritis. 2. The Veteran is not shown to have a suffered a stroke in service; cerebrovascular disease was not manifested in the first postservice year, and a stroke is not shown to be etiologically related to his service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal are met as to the claims seeking service connection for left shoulder arthritis and bilateral wrist arthritis; the Board has no further jurisdiction to consider appeals in the matters. 38 U.S.C. §§ 7104, 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. Service connection for residuals of a stroke is not warranted. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Withdrawal of Appeal Inasmuch as the Veteran has expressed intent to withdraw his appeals seeking service connection for left shoulder arthritis and bilateral wrist arthritis, there is no reason to belabor the impact of the VCAA on the matters, as any notice or duty to assist omission is harmless. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511 (a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. 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 by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. At the October 2017 Travel Board hearing, the Veteran requested withdrawal of his appeals seeking service connection for left shoulder arthritis and bilateral wrist arthritis. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). As the Veteran has withdrawn his appeal in these matters, there is no question of fact or law remaining in the matters for the Board to address, and the Board has no further jurisdiction to consider an appeal in the matters. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). By September 2010 correspondence, VA provided the Veteran VCAA mandated notice with respect to the instant claim seeking service connection. At the October 2017 Travel Board hearing, the Veteran was advised regarding what evidence is needed to substantiate the claim of service connection for a stroke. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). He was granted a 60 day abeyance to provide additional evidence; no additional evidence pertinent to this matter was received. The Veteran's service treatment records (STRs) and identified pertinent postservice treatment records have been secured. The RO did not arrange for a VA examination or secure a medical opinion in this matter. Absent any competent (medical) evidence that even suggests that the Veteran's claimed disability may be related to his service, an examination to secure a medical nexus opinion in this matter is not necessary, as even the low threshold standard as to when an examination or opinion is necessary endorsed by the U.S. Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. 38 C.F.R. § 3.159(c)(4). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of: a present disability; incurrence or aggravation of a disease or injury in service; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The Veteran's DD Form-214 reflects that he served in Vietnam, during the Vietnam Era. A Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). If a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era (from January 9, 1962 to May 7, 1975), has one of the listed diseases considered associated with exposure to certain herbicide agents [to include Agent Orange], such disease shall be considered to have been incurred in or aggravated by service, notwithstanding that there is no evidence of such disease during the period of such service. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Stroke is not a disease listed in 38 C.F.R. § 3.309(e). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v Derwinski, 1 Vet. App.49 ,55 (1990). The Board has reviewed the Veteran's entire record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs do not show any complaints, treatment, or diagnoses related to a cerebrovascular accident or stroke. On April 1969 service separation examination, his heart and vascular system were normal on clinical evaluation. A July 2007 brain MRI showed a small focus of restricted diffusion in the anterior aspect of the left talamus, adjacent to the posterior limb of the left internal capsule, consistent with an acute infarct. Mild nonspecific periventricular arid deep white matter T2 hyperintense signal suggested chronic small vessel ischemic disease. No mass effect or abnormal enhancement was seen. An old, small lacuriar infarct was noted in the left subinsular area, and the internal auditory canals and cerebellopontine angles appeared normal. An April 2010 VA treatment record notes that the Veteran sought treatment to verify whether or not he had previously suffered a stroke. He reported that in 2007 he collapsed in the backyard, sought private medical treatment, was hospitalized for three days, receiving a diagnosis of a stroke. He also reported current low back pain and numbness that radiated down his left leg. The provider reviewed his file and opined that there was no clear clinical history suggestive of a stroke. Incidental left-sided thalamic infarct was shown on his most recent brain MRI, but this was noted as clinically insignificant because the Veteran never had right-sided symptoms. He explained that the examination and history was most suggestive of cervical and lumbar etiology. A February 2012 brain MRI showed no evidence of acute infarct or acute hemorrhage. At the October 2017 Travel Board hearing, the Veteran testified that he thought he had a stroke in 2007. He reported that he was in the hospital for three days, and since that time he has taken blood thinner and heart medication. He asserted that his stroke may be related to exposure to Agent Orange. As noted, the Veteran served in Vietnam (and is presumed to have been exposed to Agent Orange/herbicides). However, stroke is not listed among the diseases enumerated under C.F.R. § 3.309(e) (as a disease associated with exposure to herbicide agents). VA's Secretary has determined that there is no positive association between exposure to herbicide agents and any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27,630 -41 (May 20, 2003). Accordingly, the presumptive provisions applicable in claims related to exposure to Agent Orange do not apply in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). While the evidence is not entirely clear as to whether or not the Veteran has suffered a stroke, a stroke (or underlying pathology) was not manifested in service or in the Veteran's first postservice year. Notably, he does not contend that it was manifested in service or in the first postservice year. Hence, service connection for this disability on the basis that it became manifest in service and has persisted, or on a presumptive basis (for cerebrovascular disability underlying a stroke, as a chronic disease under 38 U.S.C. § 1112) is not warranted. Instead, the Veteran alleges that his stroke was due to stress and/or Agent Orange exposure in service. There is no competent evidence that shows or suggests that there may be such a nexus. The Veteran's STRs contain no mention of treatment for, or a diagnosis of, vascular disease. His postservice treatment records show that a stroke was diagnosed in 2007 , approximately 38 years after his discharge from service. Whether or not a stroke may (in the absence of onset in service/continuity since) be related to an event in service that ended more than 30 years earlier is a medical question outside the scope of common knowledge. It requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Veteran is a layperson and has not presented any competent (medical opinion/textual) evidence in support of his theory that stroke is somehow related to his service. His own opinion is not competent evidence in this matter. Regarding the stated theory or entitlement, that the stroke is related to exposure to Agent Orange in service, a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on such exposure is not precluded from establishing service connection on that basis with proof of such causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, the Veteran has not submitted any evidence suggesting a nexus between his stroke and his presumed exposure to herbicides. In summary, there is no competent evidence that shows or suggests that the Veteran's stroke may be related to his service. The preponderance of the evidence is against this claim, and the appeal in the matter must be denied. ORDER The appeals seeking service connection for left shoulder arthritis and bilateral wrist arthritis are dismissed. Service connection for a stroke is denied. REMAND Further development is needed with respect to the Veteran's claims of service connection for arthritis of the spine, left hip, both knees, and residuals of a facial injury. At the October 2017 Travel Board hearing, the Veteran testified that he received treatment for his spine and knees (cortisone shots) at Hines VAMC in 1969 . Arthritis is a disease that may be service connected on a presumptive basis if manifested to a compensable degree within a year following separation from service. Consequently, records of treatment in the first postservice year may be critical evidence in this matter, and must be sought (nothing in the record suggests that 1969 Hines VAMC treatment records have been sought to date). At the October 2017 Travel Board hearing, the Veteran testified that his facial injury was the result of being hit in the face by a piece of concrete during a mortar attack during service in 1968. No scars were noted on his service entrance examination; on service separation examination, there was a checkmark indicating the presence of "identifying body marks, scars, tattoos" (but no explanation of what was shown). In a December 2017 letter, the Veteran's wife stated that he had scrap metal and glass in his face when they met in June 1970 and that she removed some of the pieces with tweezers. The Board finds no reason to find her statement not credible. However, there is insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran has not been afforded a VA examination in connection with his facial injury claim. An examination to ascertain the existence, nature, and likely etiology of any facial injury residuals is necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for the record any existing records of evaluations and/or treatment the Veteran received for back, knee, and hip complaints at the Hines VAMC from April 1969 to the present (those records that have not already been associated with the Veteran's file). The search for the records must encompass that facility itself, as well as any records storage depository where such records may have been retired. If the records cannot be located/are unavailable, it should be so noted in the record, and the Veteran should be so advised (with the scope of the search described). If the records are located and associated with the record, the AOJ should arrange for any follow-up development indicated. 2. The AOJ should then arrange for a skin disorders examination of the Veteran to establish the presence, and determine the nature and likely etiology, of any residuals of a facial injury. The examiner must review the Veteran's record in conjunction with the examination. Based on review of the record and interview and examination of the Veteran, the examiner should provide an opinion that responds to the following: (a) Identify (describe in detail) any scars on the Veteran's face. (b) Identify the likely etiology for the scar(s) noted. Specifically, is any at least as likely as not (a 50% or greater probability) that the scars) is/are related to his service, to include as due to a mortar attack in 1968? (c) If a facial scar is determined to be unrelated to injury in service, identify the etiology considered more likely, and explain why that is so. The examiner must include rationale with all opinions. The rationale should acknowledge that a scar was not noted on service entrance examination, but one was noted on service separation examination (location and etiology unspecified) 3. The AOJ should then review the record, and readjudicate the remaining claims. If any remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs