Citation Nr: 21068538 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-38 724 DATE: November 10, 2021 ORDER The appeal for entitlement to a disability rating in excess of 10 percent for tinnitus is dismissed. The appeal for entitlement to a compensable disability rating for bilateral hearing loss is dismissed. REMANDED Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for degenerative joint disease of the lumbosacral spine and levoscoliosis is remanded. Entitlement to service connection for cervicothoracic spine pain is remanded. Entitlement to service connection for thoracic spine pain is remanded. FINDINGS OF FACT 1. In February 2017, prior to the promulgation of a decision in the appeal, the Board received a letter from the Veteran requesting a withdrawal of his appeal for entitlement to service connection for tinnitus. 2. In February 2017, prior to the promulgation of a decision in the appeal, the Board received a letter from the Veteran requesting a withdrawal of his appeal for entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a disability rating in excess of 10 percent for tinnitus by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to a compensable disability rating for bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1972 to April 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of the September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. The appeal for entitlement to a disability rating in excess of 10 percent for tinnitus is dismissed. 2. The appeal for entitlement to a compensable disability rating for bilateral hearing loss is dismissed. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In the present case, the Veteran, requested the withdrawal of the claims for an increased disability rating for tinnitus and bilateral hearing loss. See February 2017 Statement in Support of Claim. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for an increased disability rating for tinnitus and bilateral hearing loss, and it is dismissed. REASONS FOR REMAND 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) is remanded. The Veteran contends that he has PTSD that is related to active military service during basic training. He contends that his VA examination was inadequate, in that the examiner did not perform any tests and it only lasted 23 minutes. The Veteran contends that his private examination has more probative value, and that the private examiner's opinion should not be discounted because there was not a complete review of the Veteran's claim file. See July 2017 form 9. In January 2014, the Veteran had a private examination by his chiropractor for his PTSD. The examiner indicated the Veteran had symptoms of insomnia, sleep deprivation, anxiety, isolation, memory loss, hypervigilance, depression, isolation and agoraphobia. The examiner indicated that the Veteran's provisional diagnosis was PTSD, which is more likely than not a permanent condition, which is directly and causally related to the Veteran's military service. In February 2014, the Veteran had a private examination by a licensed psychologist. The examiner diagnosed the Veteran with PTSD, mood disorder not otherwise specified, alcohol abuse, and cannabis abuse. The Veteran reported that while he was serving at Fort Dix, "they just marched over a kid and killed him." In another instance while in Germany, he was eating at a restaurant and "a guy came in arguing, and the other guy, somebody handed him a gun, and he just shot him in the head." The Veteran also reported being involved in a few fights during his active military service. The examiner discussed the Veteran's trauma prior to service, as well as during service and concluded that the Veteran's symptoms are consistent with the presence of a PTSD and a mood disorder, as well as a history of significant substance abuse. The examiner stated that the Veteran's PTSD symptoms which he partially met as a child, were as likely as not exacerbated by his military service to a level in which he met required diagnostic criteria. In September 2014, the Veteran was afforded a VA examination. The examiner opined that the Veteran did not meet the diagnostic criteria for PTSD. Instead, the examiner indicated that the Veteran had a diagnosis of alcohol disorder and a cannabis disorder. The examiner cited a passage from the February 2014 examination report, stating that the Veteran's social interactions increased after service. However, the examiner failed to address the next sentence from the private opinion which stated that the Veteran is only close to his spouse. The examiner stated that the Veteran's symptoms included chronic sleep impairment, and disturbances of motivation and mood. The examiner touched on the Veteran's depression and bad dreams but did not discuss the other symptoms described in the February 2014 examination. The Veteran contends that the VA examination was not thorough enough, and the examiner did not spend enough time evaluating the Veteran. The Board finds that the September 2014 VA examiner did not adequately address the Veteran's lay testimony or the February 2014 private examiner's medical opinion. The Board acknowledges that the September 2014 VA examiner pointed to some language from the private examiner's opinion but overall the opinion was not supported by any meaningful rationale. Thus, the Board finds that an adequate examination is required prior to adjudicating this claim. 2. Entitlement to service connection for degenerative joint disease of the lumbosacral spine and levoscoliosis is remanded. 3. Entitlement to service connection for cervicothoracic spine pain is remanded. 4. Entitlement to service connection for thoracic spine pain is remanded. The Veteran contends that his degenerative joint disease of the lumbosacral spine and levoscoliosis condition, cervicothoracic spine pain, and thoracic spine pain are related to active service. He stated that he worked with diesel trucks in the motor pool and with heavy equipment, and these duties affected his spine. In December 2012, the Veteran was afforded a VA examination for his back condition. The examiner indicated that the Veteran had a diagnosis of moderate degenerative joint disease of the lumbar spine and levoscoliosis. The examiner noted that the November 1972 physical examination report noted that the Veteran had "scoliosis to left." A December 1974 note indicated that the Veteran was involved in a MVA, and has back pain in the lumbosacral spine, no history of trauma, tender paraspinous muscles right and left, no direct spine tenderness, able to touch toes. The Veteran's March 1975 separation examination report did not mention the Veteran's spine abnormality and there was just a line down the sheet indicating everything was normal. The examiner acknowledged that the Veteran had one leg that was shorter than the other due to a car accident when the Veteran was 15 years old. Diagnostic testing revealed that the Veteran has moderate degenerative changes and levoscoliosis is noted. The examiner opined that the claimed back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As to the rationale, the examiner explained that there was nothing mentioned at the separation examination, and the Veteran had known scoliosis before service. The examiner explained that the Veteran was physically active during service, and after service and the Veteran was able to participate in Tae Kwando, and won tournaments, and was able to fix trains for the Massachusetts transportation authority. The Veteran was in an accident after service in 2012, and the x-rays revealed moderate degenerative changes and levoscoliosis. In January 2014, the Veteran underwent a private examination for his back condition. The Veteran reported that the onset of his symptoms occurred during basic training. The Veteran reported that his low back pain is now constant in varying degrees. The examiner diagnosed the Veteran with "well advanced degenerative joint disease and osteoarthritis of the lumbar spine emphasis lumbosacral region." The examiner opined that it is more likely than not that the aforementioned is directly and casually related to injury to and conditions of the left lower extremity as "discussed by a process of chronic and constant bio mechanical adaptation and compensation for altered gait and weight shifting... and is more likely than not that same is directly and causally related to the Veteran's military service." The examiner opined that the Veteran's pain in thoracic spine and cervicothoracic spine are more likely than not directly and casually related to injury to and to conditions of the left lower extremity and related to the Veteran's military service. The Board cannot make a fully informed decision on the issue of entitlement to service connection for service connection for degenerative joint disease of the lumbosacral spine and levoscoliosis; cervicothoracic spine pain; or thoracic spine pain because no examiner has opined whether the Veteran's pre-existing scoliosis was aggravated beyond its natural progression by the Veteran's active-duty service. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the diagnoses and etiology of an acquired psychiatric disorder, to include PTSD, mood disorder not otherwise specified, alcohol abuse, and cannibis abuse. The claims file and a copy of this remand must be made available to the examiner for review. Following a review of all pertinent evidence, the examiner must determine the following: (a.) Diagnose all psychiatric disorders. (b.) If PTSD is diagnosed, the examiner should opine on whether it is at least as likely as not (50 percent or greater probability) that the current PTSD symptoms relate to the in service stressor(s). The examiner must note and address the relevant findings in the February 2014 private examination. (c.) For any other non-PTSD psychiatric disorders diagnosed, determine whether it is at least as likely as not (50 percent or greater probability) that the diagnosed psychiatric disorder(s) is related to service. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's back disorder. The claims file and a copy of this remand must be made available to the examiner for review. Following a review of all pertinent evidence, the examiner must determine the following: (a.) Whether the Veteran's scoliosis is a congenital or developmental defect or disease. The examiner is informed a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990). (b.) If it is a congenital or developmental defect, explain whether it is at least as likely as not (50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in additional back disability. (c.) Considering a pre-existing disorder, the examiner must determine whether a pre-existing back condition was aggravated beyond the natural progression of the disease. (d.) If a back condition was not aggravated during service, is it at least as likely as not (50 percent or greater probability) that a current back condition was incurred during service or is related to any event or injury during service. 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. (Continued on the next page) 4. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.