Citation Nr: 21063366 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 14-37 730 DATE: October 14, 2021 ORDER Entitlement to service connection for a right ear disorder is dismissed. Entitlement to service connection for a right leg disability is granted. Entitlement to service connection for a left leg disability is granted. Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. FINDINGS OF FACT 1. On the record during the Board hearing on June 11, 2021, the Veteran requested a withdrawal of his claim for service connection for a right ear disorder. 2. The evidence is in relative equipoise as to whether a right leg disability is related to service. 3. The evidence is in relative equipoise as to whether a left leg disability is related to service. 4. The evidence is in relative equipoise as to whether a low back disability is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal for the claim of service connection for a right ear disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for a right leg disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left leg disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1975 to January 1977. The Board notes that the Veteran previously had a Bard hearing in July 2018 with a Veterans Law Judge who is no longer employed at the Board, however in October 2020 he was advised that due to audio malfunctions a complete transcript could not be produced. In November 2020 the Veteran elected to appear at a new video conference Board hearing, which was held before the undersigned in June 2021. The Board also notes that in December 2020 the Veteran was advised that the Board received additional VA medical records since a Supplemental Statement of the Case was issued in April 2018. The Veteran in January 2021 requested that the case be returned to the Agency of Original Jurisdiction (AOJ) for additional review. As stated above, the Veteran during his June 2021 Board hearing withdrew his claim of entitlement to service connection for a right ear disorder. The issues of entitlement to service connection for a right foot disability and left foot disability are being remanded and there is no prejudice in rendering the decision herein regarding the claims of entitlement to service connection for a right leg disability, left leg disability, and low back disability as they are full grants of the benefits sought. Issue 1: Entitlement to service connection for a right ear disorder. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or during a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the claimant or by his or her authorized representative. 38 C.F.R. § 19.55. During the June 11, 2021 Board hearing, on the record, the Veteran requested a withdrawal of his claim of entitlement to service connection for a right ear disorder. (A written transcript of that hearing has been associated with the claims file.) The Veteran's withdrawal was undertaken with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In view of the Veteran's expressed desire, further action with regard to this claim is not appropriate. Accordingly, the Board does not have jurisdiction to review the claim of service connection for a right ear disorder and it is dismissed. Issue 2-4: Entitlement to service connection for: a right leg disability, left leg disability, and low back disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303 (d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service there is required a combination of manifestations 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the February 2014 notice of disagreement, the Veteran contends that he suffered a low back injuring picking up and loading artillery shells for a 155 MM Howitzer. The shells were in excess of 97 pounds and constantly lifting them caused back problems. The Veteran stated that he has had back pain since service. As for his bilateral leg disability, the Veteran in the February 2014 and May 2014 notice of disagreement contended that it was due to constantly loading and carrying artillery shells for the 155 MM Howitzer. Those shells were excessively heavy and caused serious problems with his legs and back. During the June 2021 Board hearing the Veteran reiterated that the repetitive work he was doing during service, where he was in charge of boat loading Howitzer rounds, put a lot of strain on his back and legs. Service treatment records do not show complaints or treatment for a low back disability. On the January 1975 report of medical history the Veteran reported having had cramps in his legs. However, this does not rise to the level of clear and unmistakable evidence that a disorder preexisted service, as on the January 1975 enlistment exam the Veteran's lower extremities were evaluated as normal. The evidentiary standard is an onerous one and the result must be undebatable. Thus the presumption of soundness has not been rebutted. On the December 1976 report of medical history the Veteran continued to complain of cramps in his legs. The Veteran's DD 214 Form shows he served in a field artillery unit and his military occupational specialties included being a material supply man. On VA artery and vein Disability Benefits Questionnaire (DBQ) examination dated in November 2015 the diagnoses were varicose veins, intermittent claudication, and peripheral vascular disease. On VA examination in March 2019 for vein conditions, the diagnoses were varicose veins in the lower extremities. On VA back DBQ examination dated in November 2015, the diagnoses were lumbosacral sprain/strain and radiculopathy. A private opinion in August 2018 shows a diagnosis of varicose veins in the lower extremities. The examiner noted that the Veteran during service was in the artillery division and opined that the Veteran's vascular condition was at least as likely as not a result of his job duties involving prolonged standing with repetitive heavy lifting of artillery and other munitions. The examiner based the opinion on pathophysiology of venous insufficiency and medical literature from the National Institute of Health. In an August 2018 private opinion regarding the back disability, the diagnoses were degenerative changes in the lumbar spine, lumbar facet joint arthropathy, lumbar foraminal stenosis, and lumbar intervertebral disc syndrome. The examiner noted that the Veteran during service was in the artillery division and had wear and tear from heavy and repetitive lifting of artillery shells. The examiner explained that degenerative changes occur as the result of shear stress on the vertebral column and can be caused by wear and tear from repetitive use and heavy lifting. Thus, the examiner opined that the Veteran's low back disability was at least as likely as not a direct result of his job duties involving prolonged, repetitive heavy lifting of artillery and other munitions. The Board finds the opinions to be probative because they are based on an accurate medical history with supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The opinions are uncontroverted by the other competent and probative evidence of record. Considering the claims of service connection for a right leg disability, left leg disability, and low back disability, the Board finds that the evidence is in relative equipoise on the question of a nexus. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Issues 5-6: Entitlement to service connection for a right foot disorder and left foot disorder. The Veteran contends that the repetitive work he was doing working in artillery during service put a lot of strain on his feet. See, e.g., June 2021 Board hearing transcript. He also contended that he has a diagnosis of athlete's foot and has had foot problems since service. Id. Service treatment records in February 1975 show athlete's foot. On the December 1976 report of medical history the Veteran complained of foot trouble. On VA DBQ foot examination dated in November 2015, the diagnoses were metatarsalgia and plantar fascitis. In an August 2018 addendum opinion, the examiner noted that service treatment records in February 1975 show the Veteran was treated for bilateral athlete's foot, and three different consults in May 2014, show that he was treated for right heel spur, bursitis of the foot, and plantar fascitis. The examiner opined that thus there was continuity of care, with treatments in and after service with the foot disorder continuing to the present day. However, the grant of service connection for a right foot disability and left foot disability is premature at this juncture as service treatment records do not specifically document orthopedic problems associated with the Veteran's bilateral foot disability. Thus, the Veteran should be afforded a VA examination to determine the nature and etiology of his current right foot disability and left foot disability. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: Schedule the Veteran for a VA foot examination by an appropriate clinician to determine the nature and etiology of his right foot disability and left foot disability. After reviewing the claims file, to include a copy of this remand, and examining the Veteran the examiner is asked to render the opinions requested below. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. The examiner is asked to do the following: Provide diagnoses of all right foot and left foot disabilities and for each right foot disability and left foot disability diagnosed, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that it had onset in, or is otherwise related to, active military service. In rendering the opinion the examiner is asked to consider that the Veteran contends that the repetitive work he was doing working in artillery during service put a lot of strain on his feet and he has had foot problems since service. See, e.g., June 2021 Board hearing transcript. The examiner is asked to consider that service treatment records in February 1975 show athlete's foot. On the December 1976 report of medical history the Veteran complained of foot trouble. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.