Citation Nr: 21001261 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-04 031 DATE: January 7, 2021 ORDER The appeal for entitlement to service connection for high cholesterol is dismissed. REMANDED The issue of entitlement to service connection for hypertension is remanded. The issue of entitlement to service connection for a right hip disability is remanded. The issue of entitlement to service connection for a left hip disability is remanded. The issue of entitlement to service connection for traumatic brain injury (TBI) residuals is remanded. The issue of entitlement to service connection for a seizure disability is remanded. Entitlement to a rating in excess of 20 percent for thoracolumbar spine degenerative disc disease is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT At the March 2020 Board of Veterans’ Appeals (Board) hearing, the Veteran expressly withdrew the appeal for service connection for high cholesterol. CONCLUSION OF LAW The criteria for withdrawal of the appeal for service connection for high cholesterol are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1990 to November 1994. The Veteran appeared at a March 2020 videoconference hearing before the undersigned Acting Veterans Law Judge. The hearing transcript is of record. Withdrawal At the March 2020 Board hearing, the Veteran expressly withdrew the appeal for service connection for high cholesterol. The undersigned Acting Veterans Law Judge informed the Veteran that if he withdrew the issue of entitlement to service connection, the issue of entitlement to service connection for high cholesterol would no longer be on appeal. Thereafter, the Veteran reiterated that he wished to withdraw the issue of entitlement to service connection for high cholesterol. The Board finds that the Veteran’s withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). A veteran may withdraw a substantive appeal in writing at any time prior to the Board’s promulgation of a decision. 38 C.F.R. § 20.205. The Board finds that the Veteran has effectively withdrawn the appeal for service connection for high cholesterol. Therefore, the Board concludes that no allegation of fact or law remains as to that issue and the appeal must be dismissed. 38 U.S.C. § 7105. REASONS FOR REMAND 1. The issue of entitlement to service connection for hypertension is remanded. The Veteran asserts that service connection for hypertension is warranted as the claimed disability was initially manifested during active service or, in the alternative, the diagnosed hypertension has been aggravated by the pain associated with the service connected disabilities. Service connection may be granted for disability which is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service connected disorder has aggravated a nonservice connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for major depressive disorder, thoracolumbar spine degenerative disc disease, right lower extremity radiculopathy, and right foot tinea pedis. The report of a May 2014 Department of Veterans Affairs (VA) hypertension examination concurrently states that the Veteran was initial diagnosed with hypertension in 1992 and the “Veteran’s hypertension is less likely than not incurred in or caused by high blood pressure in the service.” The Board observes that the Veteran had active service from November 1990 to November 1994. While she commented that “acute elevations in blood pressure during illness and pain are not a cause for persistent hypertension,” the examiner made no findings as to whether the documented recurrent pain associated with the lumbar spine degenerative disc disease and the other service connected disabilities aggravated (increased in severity beyond the disability’s natural progression) the diagnosed hypertension. In light of the conflicting findings that the diagnosed hypertension both was diagnosed during active service and was not manifested during active service and the other cited deficiencies, the Board finds that the May 2014 examination report is of no probative value. VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that further VA hypertension evaluation is necessary. Clinical documentation dated after July 2019 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. The issues of entitlement to service connection for a right hip disability and a left hip disability are remanded. The Veteran asserts that service connection for a right hip disability and a left hip disability is warranted as the disabilities were related to the service connected lumbar spine and right foot disabilities and his associated altered gait. A January 2013 VA treatment record states that the Veteran was diagnosed with aseptic necrosis of both hips. The Veteran has not been afforded a VA examination which addressed the hips. 3. The issues of entitlement to service connection for TBI residuals and a seizure disorder are remanded. The Veteran contends that service connection for TBI residuals and a seizure disability is warranted as the claimed disabilities were incurred as the result of an in service head trauma sustained when he was struck in the head by a piece of equipment and fell against a truck’s tailgate. At the March 2020 Board hearing, the Veteran testified that he had been treated for the head trauma at either the Grafenberg, Germany or the Schweinfurt, Germany Army medical facilities. The service treatment documentation of record does not refer to any head trauma. VA should obtain all relevant service treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). When a veteran identifies clinical treatment associated with specific military facilities, VA has a duty to either undertake an exhaustive record search or explain why such action is not justified. Dixon v. Derwinski, 3 Vet. App. 261, 264 (1992). Documentation of the cited treatment at the Grafenberg, Germany and the Schweinfurt, Germany Army medical facilities has not been requested. A May 2013 VA treatment record states that the Veteran was diagnosed with seizures of unknown cause. The Veteran has not been afforded a VA examination which addresses the claimed TBI residuals and the diagnosed seizure disability. 4. The issue of entitlement to a rating in excess of 20 percent for thoracolumbar spine degenerative disc disease is remanded. The Veteran asserts that an increased rating for the service connected thoracolumbar spine disability as the disorder has increased in severity and is productive of bowel and urinary incontinence and severe gait impairment. At the March 2020 Board hearing, the Veteran testified that the service connected thoracolumbar spine disability had increased in severity since the last VA examination. The Veteran was last afforded a lumbar spine VA examination in May 2014. In light of the Veteran’s testimony as to the worsening of the service connected thoracolumbar spine disability, the Board finds that further VA spine examination is needed to determine the current nature and severity of the service connected thoracolumbar spine disability. 5. The issue of entitlement to a TDIU is remanded. Entitlement to a TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. As the claim for TDIU is inextricably intertwined with the other claims being remanded, the issue of entitlement to a TDIU must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for any hypertension, hip, TBI, and seizure disabilities and the service connected thoracolumbar spine disability. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Contact the National Personnel Record Center and/or the appropriate service entity and request that it have a search made of the records of the Grafenberg, Germany and the Schweinfurt, Germany Army medical facilities for any documentation pertaining to treatment of the Veteran between November 1990 to November 1994. If medical records are not located, appropriate documentation to that effect should be incorporated into the record. 3. Obtain the Veteran’s VA treatment records dated after July 2019. 4. Schedule the Veteran for a VA hypertension examination conducted by a physician to assist in determining the nature and etiology of diagnosed hypertension and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Identify all hypertension found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed hypertension had its onset during active service or is related to any incident of service, including the Veteran’s subjective history of in service high blood pressure. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that the hypertension is due to or caused by the service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that the hypertension has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. 5. Schedule the Veteran for a VA hip examination conducted by a physician to assist in determining the nature and etiology of all identified recurrent hip disabilities and any relationship to active service and the service connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Identify all recurrent hip disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent hip disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified hip disability is due to or caused by the lumbar spine, the right foot, and the other service connected disabilities. (d) Opine whether it at least as likely as not (50 percent probability or greater) that the hypertension has been aggravated (increased in severity beyond the natural progress of the disorder) by the lumbar spine, the right foot, and the other service connected disabilities. 6. Schedule the Veteran for a VA examination conducted by the appropriate physician to assist in determining the nature and etiology of all identified TBI residuals and seizure disabilities and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Identify all TBI residuals and seizure disabilities found. If no TBI residuals are identified, the examiner should specifically state that fact. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified TBI residuals and/or seizure disability had their onset during active service or is related to any incident of service, including the Veteran’s subjective history of in service head trauma. 7. Schedule the Veteran for a VA spine examination to assist in determining the severity of the service connected thoracolumbar spine degenerative disc disease. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for passive and active motion of the thoracolumbar spine. The examiner should state whether there is any additional loss of thoracolumbar spine function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (b) Indicate whether, and to what extent, the Veteran experiences functional loss of the thoracolumbar spine due to pain or any other symptoms during flare ups or with repeated use. (c) Note any incapacitating episodes associated with the thoracolumbar spine disability. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. (d) State whether or not there is any ankylosis of the spine or any segment of the spine. (e) Describe any associated lower extremity neurologic disabilities, the nerves affected, and the level of impairment. (f) Specifically address the impact of the thoracolumbar spine and the radiculopathy disabilities on the Veteran’s vocational pursuits and whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service connected disabilities. J. T. HUTCHESON Acting 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.