Citation Nr: 18123099 Decision Date: 08/01/18 Archive Date: 08/01/18 DOCKET NO. 15-08 429 DATE: August 1, 2018 ORDER Entitlement to service connection for right elbow disability is dismissed. Entitlement to service connection for disability manifested by muscle spasms of the back, neck, shoulders and legs is denied. Entitlement to service connection for bilateral hip disability is denied. Entitlement to service connection for traumatic brain injury (TBI) is denied. Entitlement to service connection for memory loss secondary to TBI is denied. Entitlement to service connection for cognitive dysfunction secondary to TBI is denied. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for low back disability is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for fatigue, to include as secondary to psychiatric disability, is remanded. Entitlement to service connection for sleep disorder, to include as secondary to psychiatric disability, is remanded. Entitlement to service connection for headaches, to include as secondary to cervical spine disability, is remanded. Entitlement to service connection for bilateral upper extremity radiculopathy is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. Entitlement to service connection for psychiatric disability, to include on a secondary basis, is remanded. Entitlement to service connection for fibroids with total hysterectomy is remanded. FINDINGS OF FACT 1. During the February 2018 Board hearing, prior to the promulgation of the Board’s decision in the appeal, the Veteran withdrew her appeal as to the issue of entitlement to service connection for right elbow disability. 2. The preponderance of the competent evidence of record is against a finding that the Veteran has a disability manifested by muscle spasms of the back, neck, shoulders and legs. 3. The preponderance of the competent evidence of record is against a finding that the Veteran has a bilateral hip disability. 4. The preponderance of the competent evidence of record is against a finding that the Veteran has TBI, which had an onset in service or is otherwise related to her head injury in service. 5. The preponderance of the competent evidence of record is against a finding that the Veteran has a disability manifested by memory loss. 6. The preponderance of the competent evidence of record is against a finding that the Veteran has a disability manifested by cognitive dysfunction. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for right elbow disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204. 2. A disability manifested by muscle spasms of the back, neck, shoulders and legs was not incurred in or aggravated by active military service. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.303. 3. A bilateral hip disability was not incurred in or aggravated by active military service. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.303. 4. A TBI was not incurred in or aggravated by active military service. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.303. 5. A disability manifested by memory loss was not incurred in or aggravated by active military service. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.303. 6. A disability manifested by cognitive dysfunction was not incurred in or aggravated by active military service. 38 U.S.C. §§ 101, 106, 1110, 5107; 38 C.F.R. §§ 3.1, 3.6, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Oregon Air National Guard with a period of active duty from October 1997 to June 1998 and additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These dates are subject verification, pending development which will be discussed below. The Veteran testified at a Board videoconference hearing before the undersigned in February 2018. Withdrawn Issue The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. An appellant may withdraw an appeal in writing or on the record at a hearing on appeal at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. When an appellant does so, the withdrawal effectively creates a situation where there no longer exists any allegation of error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review the appeal, and the appropriate action by the Board is dismissal. 38 U.S.C. §§ 7104, 7105(d). During the February 2018 Board hearing, the Veteran withdrew from appellate consideration the issue of entitlement to service connection for right elbow disability. See 38 C.F.R. § 20.204. Given the Veteran’s clear intent to withdraw her appeal in this matter, further action by the Board on this issue would not be appropriate. 38 U.S.C. § 7105. Service Connection Issues Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Active military, naval, or air service not only includes any period of active duty, but also ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury - though not also disease - incurred in or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. §§ 101(21),(24), 106; 38 C.F.R. § 3.6(a),(d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). This refers to the two weeks of annual training which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist’s or Guardsman’s initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). This refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). The Veteran essentially contends that service connection is warranted for a disability manifested muscle spasms in her neck, back, shoulders and legs, and for a bilateral hip disability. See February 2018 hearing transcript. She also contends that she injured her head in service when she hit her head on a plane in December 2004 and as a result has current TBI, memory loss and cognitive dysfunction. See December 2004 Line of Duty Determination. Regarding muscle and hip disabilities, service treatment records are silent for complaints or findings related to these disabilities. Following service, outpatient treatment records are also silent for objective findings of these disabilities. A May 2013 VA Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ) notes that no hip disability was present. The examiner opined that the Veteran’s hip complaints are “a symptom of [r]adiculopathy related to lumbar spine stenosis” rather than a separate disability. (The lower extremity radiculopathy claim is discussed in the Reasons for Remand section below.) A May 2013 VA Muscle Injuries DBQ notes that no muscle disability was present. The examiner opined that the Veteran’s complaints of muscle spasms are symptoms “related to radiculopathy and [f]ibromyalgia” rather than a separate disability. (The radiculopathy and fibromyalgia claims are discussed in the Reasons for Remand section below.) There is no medical evidence to the contrary. Thus, the Board concludes that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have a current disability manifested by muscle spasms or a current hip disability. See Brammer v. Derwinski, supra. Regarding TBI with secondary memory loss and cognitive dysfunction, service treatment records reflect that she did sustain head trauma in service in December 2004. Review of the record, however, does not show the presence of a current disability, as the Veteran has not been shown to have any current residuals of an injury to the head in service, including TBI, memory loss, or cognitive dysfunction. Additionally, a May 2013 VA TBI DBQ notes that the examiner opined the Veteran has no residuals of a head injury, to include a TBI. There is no medical evidence to the contrary. Thus, the Board concludes that the weight of the competent and credible evidence establishes that the Veteran has not been shown to have a current TBI, memory loss, or cognitive dysfunction. See Brammer v. Derwinski, supra. With regard to the Veteran’s contentions that she has current muscle disability, hip disability, TBI, memory loss and cognitive dysfunction, the Board acknowledges that she is competent to describe her symptoms and observations. However, she is not competent to opine as to medical diagnosis or etiology of a disorder in these matters; these are questions medical in nature and not capable of resolution by lay observation. See Jandreau v. Nicholson, supra; Buchanan v. Nicholson, supra. In sum, the most competent and credible evidence of record establishes that the Veteran has not been shown to have current disability manifested by muscle spasms, bilateral hip disability, or TBI with memory loss and cognitive dysfunction. Thus, the Board must conclude that the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Cervical Spine and Low Back Disabilities The Veteran contends that she was seen for multiple back and neck complaints from 2004 to 2010, including in December 2004, October 2005, January 2007, May 2007, March 2008, January 2009 and October 2010. See July 2012 Statements in Support of Claim, and February 2018 hearing transcript. As noted above, she served in the Oregon Air National Guard until February 2012, with a period of active duty from October 1997 to June 1998 and additional periods of ACDUTRA and INACDUTRA. The Veteran was also a civilian employee of the Oregon Air National Guard during the same time. The documents currently of record (to include point credit summaries obtained through the Department of Defense Personnel Records Information System (DPRIS)) are insufficient to determine all the Veteran’s specific periods of ACDUTRA and INACDUTRA, which is vital for these claims. Remand is needed to contact DPRIS or Defense Finance and Accounting Service (DFAS) to provide the specific dates of all the Veteran’s active duty, ACDUTRA and INACDUTRA service. Upper Extremity Radiculopathy, Lower Extremity Radiculopathy, Vertigo, Headaches, Psychiatric Disability, Sleep Disorder and Fatigue The Veteran maintains that she has lower extremity radiculopathy secondary to her low back disability. She also maintains that she has upper extremity radiculopathy, vertigo, headaches and depression secondary to her cervical spine disability. Since a determination has not yet been reached on whether the Veteran’s cervical spine and low back disabilities are related to service, the decisions on radiculopathy of the upper and lower extremities, vertigo, headaches and psychiatric disability are deferred as these matters are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Likewise, her claims of service connection for fatigue and sleep disorder as secondary to psychiatric disability are deferred for the same reason. Id. Tinnitus, Fibromyalgia and Total Hysterectomy Secondary to Fibroids Although VA medical opinions were obtained for the Veteran’s tinnitus, fibromyalgia, and total hysterectomy claims in March 2013 (tinnitus), May 2013 (fibromyalgia), and May 2016 (total hysterectomy), these reports are inadequate for adjudication purposes. Specifically, the VA examiner who conducted the March 2013 VA examination incorrectly indicated that there was no evidence of in-service noise exposure when the Veteran’s duties during active duty involved aircraft maintenance and exposed her to noise from planes and equipment (see DD Form 214 and February 2018 hearing transcript). The May 2013 VA examiner who conducted the fibromyalgia examination failed to consider the Veteran’s service beyond the verified active duty from October 1997 to June 1998, including any subsequent ACDUTRA. The May 2016 VA examiner noted that the Veteran was diagnosed with uterine fibroids in service (March 1998) and underwent a total hysterectomy in February 2001. The February 2001 operative report notes that the hysterectomy was due to dysmenorrhea and menorrhagia. What is missing from the VA examination report is an opinion as to whether the cramping and heavy bleeding was related to the fibroids diagnosed in 1998. The development of facts includes a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment: “if [an examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.” 38 C.F.R. § 4.2; Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, additional medical opinions should be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matters are REMANDED for the following actions: 1. Contact DPRIS, the Defense Finance and Accounting Service, the National Guard Bureau, and/or any other appropriate source, for records showing the periods of active duty, ACDUTRA and INACDUTRA served by the Veteran. All records requests and responses received must be documented in the claims file and all pertinent follow-up should be undertaken. 2. Obtain an addendum opinion as to the etiology of the Veteran’s tinnitus from a qualified VA examiner. The entire electronic claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that tinnitus had its onset in, or is otherwise related to, the Veteran’s military service. The examiner must acknowledge the Veteran’s noise exposure during her duties in aircraft maintenance as noted on her DD Form 214. The examiner should state a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete 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 that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Obtain an addendum opinion as to the etiology of the Veteran’s fibromyalgia from a qualified VA examiner. The entire electronic claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that fibromyalgia had its onset in, or is otherwise related to, the Veteran’s military service. The examiner must acknowledge all verified periods of service, to include ACDUTRA and INACDUTRA. The examiner should state a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete 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 that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Obtain an addendum opinion as to the etiology of the Veteran’s total hysterectomy from a qualified VA examiner. The entire electronic claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The VA examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that hysterectomy, or the dysmenorrhea and menorrhagia that lead to such, is related to the uterine fibroids diagnosed in March 1998. The examiner should state a complete rationale for any opinion provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete 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 that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Undertake any additional development indicated by the results of the development requested above (to include the scheduling of any VA examinations, if necessary). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.R.Fletcher, Counsel