Citation Nr: 21066621 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 09-27 600 DATE: November 1, 2021 ORDER Entitlement to service connection for a bilateral hip disorder is dismissed. Entitlement to service connection for a left shoulder disorder is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. In April 2018, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received written notification from the appellant's representative that a withdrawal of his claim for entitlement to service connection for a bilateral hip disorder was requested. 2. Resolving all reasonable doubt in the Veteran's favor, his left shoulder disorder is at least as likely as not attributable to his service-connected bilateral knee disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of service connection for a bilateral hip disorder by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for entitlement to service connection for a left shoulder disorder as secondary to a service-connected bilateral knee disability have been met. 38 U.S.C. §§1110, 5103, 5103A, 5107; 38C.F.R. §§3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1983 to June 1989. This matter comes before the Board on appeal of November 2013 and February 2014 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Board previously remanded this matter in August 2017 in order to afford the Veteran a hearing before a Veterans Law Judge, which was scheduled for February 2018. In February 2018 correspondence, the Veteran, through his representative, withdrew his hearing request. Service Connection 1. Entitlement to service connection for a bilateral hip disorder The Veteran submitted a September 2016 Form 9 appeal to the Board which included both the issue of entitlement to service connection for a bilateral hip disorder and a hearing request. As noted above, the Veteran, through his representative, withdrew this request in February 2018 correspondence. In April 2018 correspondence, the Veteran's representative submitted a brief in lieu of a hearing, which included the Veteran's intention to withdraw his claim of entitlement to service connection for a bilateral hip disorder. 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. The April 2018 brief contains the Veteran's name and file number and clearly states an intent to withdraw the claim of entitlement to service connection for bilateral hip condition. See Hembree v. Wilkie, 33 Vet. App. 1 (2020); 38 C.F.R. § 20.204(b). Accordingly, the Board does not have jurisdiction to review this issue and its appeal is dismissed. 38 U.S.C. § 7105. 2. Entitlement to service connection for a left shoulder disorder The Veteran asserts his left shoulder disorder is due to his service-connected bilateral knee disabilities. To establish service connection, the evidence must show competent evidence of (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of an established service-connected disability. See 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists; and (2) the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall afford the benefit of the doubt to the claimant. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the weight of the evidence amounts to relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Therefore, a preponderance of the evidence must weigh against the Veteran's claim in order for service connection to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). After the initial Board remand, the Veteran submitted an April 2018 disability benefits questionnaire for his left shoulder, completed by a private physician. After an in-person examination, the physician provided diagnoses of both a left rotator cuff tear as well as osteoarthritis of the left shoulder, based on testing and a review of imaging. The physician noted that the Veteran's knee disabilities were so severe that he was unable to get up from a seated position without using his arms for assistance, and "as a result of that has now developed pain in the left shoulder." In this case, the Board notes the favorable private physician opinion was based upon that examiner's expertise and an examination of the Veteran, and that it took into account both his medical records and lay statements. As such, the Board finds it probative. The Veteran has not been provided a VA shoulder examination and the AOJ did not obtain an opinion regarding the nature or etiology his diagnosed left shoulder disorder. The Board notes that VA cannot undertake additional development for the purpose of developing negative evidence unless reasons and bases can be provided to explain the decision to pursue further development. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). In this case, the Veteran's private treatment provider has provided evidence of a current disability as well as a competent, credible and probative opinion that his left shoulder pain is a result of compensating for a service-connected disability. The Board notes this opinion is based in part on the severity of the Veterans bilateral knee disabilities, which is corroborated not only by the lay testimony of the Veteran but also by VA treatment and examination records describing severe bilateral functional impairment and at least four separate knee operations resulting in temporary 100 percent ratings since 2012. As noted above, there is no opinion to the contrary. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Accordingly, the Board finds that the Veteran's left shoulder disorder at least as likely as not was caused or aggravated by his service-connected bilateral knee disability. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits."). The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. The Veteran asserts his bilateral hearing loss and tinnitus are due to his active service, particularly his proximity to firing artillery. The Board observes he was afforded a VA audiological examination in November 2013. Although the Veteran reported symptoms of tinnitus and audiometric testing revealed hearing loss, the examiner stated that he was unable to provide an opinion with regard to etiology of the disorders, as the Veteran's service treatment records were not available to review. It appears these records have since been attached to the claims file. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that this examination is inadequate, as the examiner was not provided with the records necessary to provide an opinion with regard to service connection. Given this, as well as the remoteness of the only examination of record, remand for a new examination is required. See Green v. Derwinski,1 Vet. App. 121, 124(1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). The matters are REMANDED for the following action: 1. Ensure that the Veteran's service treatment records are associated with the claims file. 2. Then, schedule the Veteran for an audiological examination with a qualified VA clinician. After reviewing the claims file, the examiner is asked to separately opine as to whether the Veteran's bilateral hearing loss and tinnitus at least as likely as not (50 percent or greater probability) occurred in or are otherwise related to his active service. The examiner is asked to address the Veteran's contention that his hearing loss and tinnitus are due to his exposure to firing artillery during his time as an air defense artillery crewmember. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. If any of the requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.