Citation Nr: 21066827 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-41 137A DATE: November 2, 2021 ORDER Entitlement to service connection for fibromyalgia has been withdrawn. Entitlement to service connection for a right shoulder condition is granted. REMANDED Entitlement to service connection for vision deterioration is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a right hip condition is remanded. FINDINGS OF FACT 1. Prior to the issuance of a decision in the appeal, the Veteran withdrew the above issue of entitlement to service connection for fibromyalgia currently on appeal in a September 2021 correspondence. 2. The Veteran's right shoulder condition is at least as likely as not etiologically related to his active-duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for fibromyalgia by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for establishing entitlement to service connection for a right shoulder condition have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1981 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and October 2015 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in January 2021, it was remanded for additional development. Specifically, the RO was instructed to obtain examinations which addressed the etiology of the Veteran's claimed disabilities. Relevant examinations were obtained. As such, the Board finds that the RO substantially complied with the directives of the January 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). WithdrawalFibromyalgia The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. In Hembree v. Wilkie, the United States Court of Appeals for of Veterans Claims held that written withdrawals of an appeal are governed by the application regulations instead of DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (requiring a withdrawal to be explicit, unambiguous, and done with a full understanding of the consequences.) See 33 Vet. App. 1,7 (2020). The applicable regulation is 38 C.F.R. § 19.55, which requires that the withdrawal include the name of the appellant and the file number, and a statement that the appeal is withdrawn. See 38 C.F.R. § 19.55(b)(1). The Veteran or representative must also specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. Under 38 C.F.R. § 19.55(c) withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies. In the present case, the Veteran was most recently issued an August 2021 supplemental statement of the case (SSOC) regarding his fibromyalgia, bilateral hips, right shoulder, and vision claims. In response to this SSOC the Veteran filed a September 2021 VA Form 9 wherein he indicated that he was only appealing his right shoulder, bilateral hip, and vision condition claims. Further, in a September 2021 correspondence, the Veteran indicated "I disagree with the denial of service connection relating to bilateral hip, right shoulder, and left eye condition[s] only." (emphasis in the original). Applying the relevant VA regulation, the Board finds the Veteran properly withdrew this claim on appeal. Thus, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. In this regard, although the Veteran's representative submitted an Informal Hearing Presentation on this matter in September 2021, the Board is confident this was based on error, namely lack of review of the Veteran's September 2021 withdrawal of the issue in his claims file. In any event, the Veteran's withdrawal is effective September 15, 2021, the date it was received by the Board, so his representative's subsequent argument is of no consequence to this matter. See 38 C.F.R. § 19.55(b)(3). In sum, for reasons and bases outlined above, there remain no allegations of error of fact or law for appellate consideration, and this appeal is dismissed. 38 U.S.C. § 7105; 38C.F.R. § 19.55. Service ConnectionLegal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Right Shoulder Condition The Veteran seeks service connection for a right shoulder condition which he contends originated in service. The medical evidence confirms that the Veteran has a current diagnosis of right shoulder degrative arthritis. See March 2021 VA Shoulder and Arm Conditions examination. The central issue that must be resolved is whether the Veteran's current disability originated in service or is otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Initially, the Board notes that the Veteran's service treatment records (STRs) contain no complaints of, or treatment for, a right shoulder condition. However, the Veteran has provided lay statements throughout the record that he injured his right shoulder during his active-duty service work as a Military Postal Clerk and that the pain has continued into present day. The Veteran reported that he was put the mission first and would take over the counter medications to help deal with his shoulder pain while in service. The Board also notes that the Veteran submitted a June 2014 lay buddy statement from a T.M. who served with him as a postal clerk. In his statement, T.M. reported that he and the Veteran would have frequent pains during service. Further, T.M. reported that he witnessed the Veteran struggle to lift things above his shoulders. The Veteran submitted a September 2015 lay buddy statement from another fellow servicemember. In this statement the fellow servicemember indicated that he would observe the Veteran dealing with shoulder pain while they were unloading containers filled with mail. He continued that he would help the Veteran complete his tasks and that when they complained to management about a lack of carts to move heavy packages they were told to "suck it up." He also noted that he again met the Veteran when they were deployed to Desert Storm and that the Veteran's pain/shoulder conditions did not improve, but they put the mission first and continued to work because they did not want to complain while their country was at war. The Board notes that the Veteran's treatment records document complaints of and treatment for, right shoulder pain In response to the Board's January 2021 Remand, the Veteran was provided with a March 2021 VA Shoulder and Arm Conditions examination. The examiner opined that the Veteran's shoulder condition was less likely than not (less than a 50 percent probability) etiologically related to his active-duty service. The rationale provided was that there was no complaint, treatment, or diagnosis of a right shoulder condition in the Veteran's STRs. The examiner continued that there is no objective evidence that the right shoulder condition has been chronic and ongoing since service. Further, the examiner indicated that the weight of per reviewed research is against a relationship (causation or aggravation) between the Veteran's shoulder condition and his lower back disability. The Veteran was further provided with an July 2021 Addendum to the March 2021 opinion. In this addendum the examiner opined that the Veteran's condition was not related to military service because the medical record fails to document chronicity of the claimed condition during service. Further, the examiner indicated that the Veteran's right shoulder is not related to, or aggravated by, the Veteran's lumbar spine disability. The examiner explained that a back condition has no relationship to a right shoulder condition to cause aggravation and a nexus is not supported by medical literature. In this case, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). The VA examiner's opinion was based on a lack of evidence of treatment in service. However, the Board notes, "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. at 496. As noted below, the Veteran has offered competent and credible evidence of continuity of symptomatology. Additionally, the Veteran has provided competent lay buddy statements which addressed his right shoulder difficulties and pains in service. Further, the Board notes that the examiner did not discuss the Veteran's, nor his fellow service-members', competent lay statements addressing his right shoulder pain from service to present day. Therefore, the medical opinion is based on a lack of review of the entire record is of limited probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that the Board may afford weight to an opinion based on factors such as reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case). Additionally, the VA examiner acknowledged that the Veteran was experiencing shoulder pain, and that the pain was related to his current condition. The Board has considered the Veteran's lay statements, and the lay buddy statements, submitted in support of his claim. He is competent to report symptoms, such as pain, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, the fellow servicemembers are competent to report what they directly observed. However, they are not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. In this case, the Veteran has reported that he experienced right shoulder pain since his duties as a postal worker in service, which has persisted ever since. The Board finds the Veteran competent to report such manifestations. Additionally, the lay buddy statements reported witnessing the Veteran struggle with his shoulder and heard the Veteran directly complain about shoulder pain in service. The Board finds them competent to report this. It is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person. Additionally, the Veteran's lay statements are consistent with other medical evidence in the record. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. In this respect, the Board finds the Veteran's own reports of experiencing ongoing pain to be at least as probative as the above-noted VA examiner's findings, as the Veteran is truly the only person capable of such observation. Given the evidence discussed above, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran's right shoulder disability is at least as likely as not etiologically related to his active-duty service. The evidence is thus at least evenly balanced as to whether the Veteran's current right shoulder disability is related to the in-service reports of his right shoulder. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a right shoulder condition is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Vision Deterioration Initially, the Board notes that the record for review may be incomplete. In the Veteran's February 2021 Eye Conditions examination and July 2021 VA Addendum opinion, the examiner indicates that in 2007 the Veteran was referred for treatment by a Dr. M. from MacDill air force base, and that Dr. M's examination would be helpful for determining the etiology of the Veteran's vision condition. However, this examination has not been associated with the claims file. As these records may contain information that is pertinent to the Veteran's claims on appeal, the RO must attempt to obtain/locate it. Further, the Board notes that in a September 2021 correspondence, the Veteran cited to several medical articles regarding the potential etiology of his vision condition. As such, the Board finds an addendum medical opinion is required to address the articles cited by the Veteran. Bilateral Hip While the Veteran was provided with a March 2021 VA Hip Conditions examination and a July 2021 Addendum opinion regarding the etiology of his claimed bilateral hips, the Board finds a remand for an addendum is required before the claim can be adjudicated. In proffering their opinions, the VA examiners provided negative nexus opinions regarding direct service connection and service connection as secondary to the Veteran's low back condition. However, in his September 2021 correspondence, the Veteran additionally claimed that his hip disability could be etiologically related to his service-connected knee disabilities. As such, the Board finds that a medical opinion is required to address whether the Veteran's bilateral hip conditions is proximately due to, or aggravated by, his service-connected knee disabilities. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's issues on appeal. Specifically, the RO should attempt to obtain/locate the Veteran's 2007 optometrist examination from Dr. M. at the MacDill Air Force Base. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Once the above is completed, obtain an addendum medical opinion, from the VA examiner who provided the July 2021 VA medical opinion regarding the Veteran's vision condition, or if that examiner is unavailable, another qualified VA examiner with sufficient expertise to comment on the etiology of the Veteran's vision deterioration disability. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the following: a) If located and added to the claims file the examiner must discuss Dr. M's examination and whether it provides evidence that the Veteran's vision deficiency is at least as likely as not (a 50 percent disability or greater) etiologically related to his active-duty service. b) The examiner should review and provide commentary on the medical articles cited by the Veteran in his September 2021 correspondence. The examiner must opine in light of these articles, whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's vision deficiency is etiologically related to his active duty service. The examiner must provide a complete rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Finally, obtain an addendum medical opinion regarding the etiology of the Veteran's bilateral hip conditions from a qualified VA examiner with sufficient expertise to comment on the etiology of the Veteran's bilateral hip disability. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the following: Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hip conditions are proximately due to, aggravated by, or otherwise etiologically related to his service-connected bilateral knee disabilities. The examiner must provide a complete rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.