Citation Nr: 20023167 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 18-16 032 DATE: April 3, 2020 ORDER Entitlement to an earlier effective date for the award of service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to an earlier effective date for the award of service connection for degenerative arthritis of the spine with intervertebral disc disease (a low back disability) is dismissed. Entitlement to an earlier effective date for the award of service connection for radiculopathy of the left lower extremity is dismissed. Entitlement to an earlier effective date for the award of service connection for scar of the lumbar back is dismissed. Entitlement to an earlier effective date for the award of service connection for tinnitus is dismissed. Entitlement to service connection for tendonitis is denied. Entitlement to service connection for right carpal tunnel syndrome is denied. Entitlement to service connection for left carpal tunnel syndrome is denied. Entitlement to service connection for hypertension is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for scars of the head, face, or neck is remanded. FINDINGS OF FACT 1. In April 2019, prior to the promulgation of a decision in the appeal, the Veteran, through his authorized representative, requested a withdrawal of the appeal as to the issues of entitlement to earlier effective dates for the awards of service connection for PTSD, a low back disability, radiculopathy of the left lower extremity, a lumbar back scar, and tinnitus. 2. The evidence is against a finding that the Veteran has a tendonitis disability that is related to his military service. 3. The evidence is against a finding that the Veteran has a right carpal tunnel syndrome disability that is related to his military service. 4. The evidence is against a finding that the Veteran has a left carpal tunnel syndrome disability that is related to his military service. 5. The evidence is against a finding that the Veteran has hypertension that is related to his military service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met as to the issues of entitlement to earlier effective dates for the awards of service connection for PTSD, a low back disability, radiculopathy of the left lower extremity, a lumbar back scar, and tinnitus. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. 2. The criteria for establishing service connection for tendonitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for establishing service connection for left carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for establishing service connection for right carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2006 to May 2013, to include service in Afghanistan. These matters come before the Board of Veterans’ Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran’s attorney withdrew as his representative. The Veteran was notified of the withdrawal and allowed a period of time for response. The Board recognizes the Veteran as proceeding pro se in this matter. The Veteran has not raised any issues pertaining to the duty to notify or duty to assist. Withdrawn Claims 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 as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In this case, in an April 2019 statement from his representative, the Veteran withdrew his appeal specifically as to the issues of entitlement to earlier effective dates for the awards of service connection for PTSD, a low back disability, radiculopathy of the left lower extremity, and lumbar back scar, and tinnitus. As there remain no allegations of errors of fact or law for appellate consideration regarding these, the Board does not have jurisdiction over these issues, and they are dismissed. The Veteran’s remaining claims are addressed below. Service Connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 1. Service connection for tendonitis, bilateral carpal tunnel syndrome, and hypertension. The Board notes that, in addition to the above regulations, service connection may also be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including an undiagnosed illness or a medically unexplained chronic multi symptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and other functional disorders. The disability must manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. An undiagnosed illness is one which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). Review of the record in this case, however, shows that the Veteran served in Afghanistan. Unfortunately, service in Afghanistan is not considered Southwest Asia service for the purposes of presumptive service connection under 38 C.F.R. § 3.317(a). See Cox v. McDonald, 28 Vet. App. 318 (2016). The Veteran is not precluded, however, from establishing service connection a direct basis or under the presumptive provisions for chronic disabilities as noted above. For the reasons that follow, however, and with the exception of his headache and scar claims addressed in the Reasons for Remand section below, the Veteran’s remaining service connection claims must be denied as the evidence is against a finding that he has current disabilities for service connection purposes during the period on appeal. To that end, both the Veteran’s February 2013 in-service separation physical and his post-service medical treatment records are negative for symptoms or treatment indicative of disabilities of tendonitis, carpal tunnel syndrome, or hypertension. Moreover, multiple VA examinations afforded in September 2017 are negative for any of the above claimed disabilities. The existence of a current disability is the cornerstone of a claim for VA disability compensation; without a current disability, service connection cannot be established. 38 U.S.C. § 1110; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Veteran’s service connection claims for tendonitis, bilateral carpal tunnel syndrome, and hypertension must be denied. The Board has considered the Veteran’s statements, to include his assertions that these purported disabilities are related to service. As the Veteran is not shown to have medical education or experience, he is a lay person and is competent to report (1) symptoms that are observable to a layperson; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition as these are medically complex issues. Thus, his lay assertions do not constitute evidence upon which service connection can be granted. In any event, the Board ultimately assigns greater probative weight to the medical evidence of record, to include the findings of trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND While the Board regrets further delay, the Veteran’s service connection claims for headaches and scars of the head, face, or neck must be remanded for additional development. Evidence received by the Agency of Original Jurisdiction prior to transfer of the records to the Board will be referred to the appropriate rating or authorization activity for issuance of a Supplemental Statement of the Case, unless the additional evidence received duplicates evidence previously of record which was discussed in the Statement of the Case or a prior Supplemental Statement of the Case or the additional evidence is not relevant to the issue on appeal. 38 C.F.R. § 19.37(a); see also 38 C.F.R. § 19.31(b)(1). Here, additional evidence has been added to the file by VA since the Statement of the Case was issued in February 2018, and prior to the appeal’s transfer to the Board, as to the Veteran’s claims for entitlement to service connection for headaches and a scar. Notably, a July 2018 traumatic brain injury (TBI) evaluation conducted at the San Diego VA Medical Center, which notes the Veteran complaining of headaches that he now asserts are the result of an in-service TBI, is now of record. Additionally, the Veteran asserts this purported in-service head injury resulted in a residual scar. While VA examinations in September 2017 are negative for a scar of the head, face, or neck, the aforementioned TBI consultation does note a well-healed scar over the top of the head, just left of the midline. The issues must be therefore remanded so that a Supplemental Statement of the Case may be issued that considers all evidence of record. Any other development should also be completed, to include affording the Veteran VA TBI and scars examinations to determine the nature and etiology of these disabilities, if deemed necessary. The matters are therefore REMANDED for the following actions: (Continued on the next page) Review the additional evidence added to the record since the February 2018 Statement of the Case, complete any development deemed necessary in light of the new evidence, and readjudicate the remaining claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond. C.B. Iwanowski Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, Associate 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.