Citation Nr: 20002805 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 16-54 104 DATE: January 13, 2020 ORDER Entitlement to service connection for vitamin D deficiency has been withdrawn and is dismissed. Entitlement to service connection for left inguinal strain has been withdrawn and is dismissed. Entitlement to service connection for elevated liver enzymes has been withdrawn and is dismissed. Entitlement to service connection for right anterior diaphragmatic eventration has been withdrawn and is dismissed. Entitlement to a rating higher than 50 percent for sleep apnea has been withdrawn and is dismissed. Entitlement to service connection for right upper extremity radiculopathy is granted. Entitlement to service connection for left upper extremity radiculopathy is granted. REMANDED Entitlement to service connection for right lower extremity radiculopathy is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for heart palpitations is remanded. Entitlement to service connection for kidney stones is remanded. Entitlement to service connection for triceps tendonitis of the right upper extremity is remanded. Entitlement to service connection for left hand sprain is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a dental disability, claimed as bruxism, is remanded. Entitlement to service connection for seborrheic keratosis is remanded. Entitlement to service connection for tinea corporis is remanded. Entitlement to service connection for chronic diarrhea is remanded. Entitlement to service connection for scars of the forehead and nose is remanded. Entitlement to an initial rating higher than 0 percent for hypertension is remanded. Entitlement to a rating higher than 0 percent for migraine headaches is remanded. FINDINGS OF FACT 1. In October 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through the authorized representative, that a withdrawal of the appeal of the issue of entitlement to service connection for vitamin D deficiency was requested. 2. In October 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through the authorized representative, that a withdrawal of the appeal of the issue of entitlement to service connection for left inguinal strain was requested. 3. In October 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through the authorized representative, that a withdrawal of the appeal of the issue of entitlement to service connection for elevated liver enzymes was requested. 4. In October 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through the authorized representative, that a withdrawal of the appeal of the issue of entitlement to service connection for right anterior diaphragmatic eventration was requested. 5. In October 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through the authorized representative, that a withdrawal of the appeal of the issue of entitlement to a rating higher than 50 percent for sleep apnea was requested. 6. The evidence is at least in equipoise regarding whether the Veteran has radiculopathy of the right upper extremity, related to a service-connected cervical spine disability. 7. The evidence is at least in equipoise regarding whether the Veteran has radiculopathy of the left upper extremity, related to a service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for vitamin D deficiency have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of the issue of entitlement to service connection for left inguinal strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of the issue of entitlement to service connection for elevated liver enzymes have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of the issue of entitlement to service connection for right anterior diaphragmatic eventration have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for withdrawal of the issue of entitlement to a rating higher than 50 percent for sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 6. The criteria for service connection for radiculopathy of the right upper extremity, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 7. The criteria for service connection for radiculopathy of the left upper extremity, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal 1. Entitlement to service connection for vitamin D deficiency 2. Entitlement to service connection for left inguinal strain 3. Entitlement to service connection for elevated liver enzymes 4. Entitlement to service connection for right anterior diaphragmatic eventration 5. Entitlement to a rating higher than 50 percent for sleep apnea The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. 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. § 20.205. Withdrawal may be made by the appellant or the authorized representative. 38 C.F.R. § 20.205. At the October 2019 Board hearing, the Veteran reported that he did not want to continue the appeal concerning the issues of entitlement to service connection for vitamin D deficiency, left inguinal strain, elevated liver enzymes, right anterior diaphragmatic eventration, and entitlement to a rating higher than 50 percent for sleep apnea. Therefore, the Veteran has withdrawn those issues from the appeal. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of those six issues, and they are dismissed. Service Connection Service connection may be granted for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (2017); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. A disability that is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. In such an instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). 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. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. Entitlement to service connection for radiculopathy, right upper extremity 7. Entitlement to service connection for radiculopathy, left upper extremity Service connection for a cervical spine disability was established by a May 2015 Agency of Original Jurisdiction (AOJ) rating decision. That decision denied service connection for radiculopathy of the right and left upper extremities. It was noted that an April 2015 VA examiner found no pathology to diagnose radiculopathy of either upper extremity. Subsequently, the Veteran sought additional private treatment, and June and November 2016 private treatment records contain a diagnosis of cervical disc disorder with radiculopathy. Based on all the evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has radiculopathy of the right and left upper extremities secondary to a service-connected cervical spine disability. The Board acknowledges that the April 2015 VA examiner found no pathology. However, in the course of receiving treatment subsequent to that VA examination, a private treatment provider diagnosed upper extremity radiculopathy associated with a service-connected cervical spine disability. Taken as a whole, the evidence is at least in equipoise regarding whether currently diagnosed radiculopathy of the right and left upper extremities is related to a service-connected cervical spine disability. Accordingly, the Board will resolve reasonable doubt in favor of the Veteran and find that entitlement to service connection for radiculopathy of the right and left upper extremities is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for radiculopathy of the right lower extremity 2. Entitlement to service connection for radiculopathy of the left lower extremity 3. Entitlement to service connection for heart palpitations 4. Entitlement to service connection for kidney stones is remanded. 5. Entitlement to service connection for triceps tendonitis of the right upper extremity is remanded. 6. Entitlement to service connection for left hand sprain is remanded. 7. Entitlement to service connection for bilateral hearing loss is remanded. 8. Entitlement to service connection for a dental disability, claimed as bruxism, is remanded. 9. Entitlement to service connection for seborrheic keratosis is remanded. 10. Entitlement to service connection for tinea corporis is remanded. 11. Entitlement to service connection for chronic diarrhea is remanded. 12. Entitlement to service connection for scars of the forehead and nose is remanded. At the October 2019 Board hearing, the Veteran stated that he received medical treatment from a private doctor, a private pain management center, and a private neurosurgeon. He specifically mentioned the Midwest Pain Center, the Gerald Champion Regional Medical Center, and a private examiner named Matthew Beckman. While a few records from the Midwest Pain Center are of record, and a single page marked “discharge instruction sheet” from the Gerald Champion Regional Medical Center is of record, based on the Veteran’s testimony at the hearing, there appear to be additional outstanding private treatment records relevant to the claim. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). At the October 2019 hearing, the Veteran also referenced records from “medical on base in Dayton.” Records generated by VA or federal facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Efforts should be made to obtain all outstanding referenced treatment records, as authorized by the Veteran. 13. Entitlement to an initial rating higher than 0 percent for hypertension is remanded. 14. Entitlement to a rating higher than 0 percent for migraine headaches is remanded. The Veteran last underwent VA examination of hypertension and his headaches in March 2015. The Veteran has essentially asserted that hypertension and headache symptoms have increased in severity since the most recent examination. Specifically, he has asserted that his doctor has increased his prescribed hypertensive medication, and his headaches had increased in frequency and severity. Where the evidence of record does not indicate the current state of the Veteran’s disability, a more contemporaneous VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). In light of the Veteran’s assertions of increased symptoms, remand is required to obtain updated treatment records and provide the Veteran updated VA examinations that evaluate the current symptomatology of hypertension and headache disabilities. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, request any outstanding private treatment records, to specifically include treatment records from the Midwest Pain Center, the Gerald Champion Regional Medical Center, the private examiner named Matthew Beckman, and the private neurosurgeon referenced by the Veteran at his October 2019 Board hearing and associate them with the record. All attempts to locate records must be documented in the claims file. 2. Obtain all VA and federal treatment records not already associated with the claims file, to specifically include treatment records from “medical on base in Dayton” referenced by the Veteran at his October 2019 hearing. 3. Then, schedule the Veteran for a VA examination to assess the current nature and severity of service-connected hypertension. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner must explicitly address the functional impairments caused by the Veteran’s hypertension disability, both occupationally and socially. 4. Then, schedule the Veteran for a VA examination to assess the current severity of service-connected headaches. The examiner must review the claims file and should note that review in the report. All indicated studies deemed necessary by the examiner should be performed, and all findings should be reported in detail. All opinions must be accompanied by a rationale. The examiner is asked to describe in detail the frequency, duration, and severity of the Veteran’s headaches. In discussing the severity of the headaches, the examiner should opine as to whether the Veteran’s migraine headaches are characterized by: (a) Very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; (b) Characteristic prostrating attacks occurring on an average once a month over the last several months; or (c) Characteristic prostrating attacks averaging one in two months over the last several months. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.