Citation Nr: 21068923 Decision Date: 11/16/21 Archive Date: 11/15/21 DOCKET NO. 14-16 568 DATE: November 16, 2021 ORDER 1. Entitlement to service connection for a lumbar spine disability, to include pain on the right side, has been withdrawn and is dismissed. 2. Entitlement to service connection for headaches, to include as secondary to allergic rhinitis, has been withdrawn and is dismissed. 3. Entitlement to service connection for hypertension has been withdrawn and is dismissed. 4. Entitlement to service connection for enlarged heart with chest pain and abnormal electrocardiogram (EKG), to include as secondary to hypertension, has been withdrawn and is dismissed. REMANDED 5. Entitlement to service connection for erectile dysfunction is remanded. 6. Entitlement to Special Monthly Compensation (SMC) based on loss of use of creative organ is remanded. 7. Entitlement to service connection for a left shoulder disability is remanded. 8. Entitlement to service connection for a left elbow disability is remanded. 9. Entitlement to service connection for a gastrointestinal disability is remanded. 10. Entitlement to service connection for hyperthyroidism with goiter, to include as secondary to allergic rhinitis, is remanded. FINDINGS OF FACT 1. On a May 2020 VA Form 9, Appeal to the Board, the Veteran explicitly and unambiguously expressed his intent to withdraw his appeal in connection with the claim for service connection for a lumbar spine disability, to include pain on the right side. 2. On a May 2020 VA Form 9, Appeal to the Board, the Veteran explicitly and unambiguously expressed his intent to withdraw his appeal in connection with the claim for entitlement to service connection for headaches, to include as secondary to allergic rhinitis. 3. On a May 2020 VA Form 9, Appeal to the Board, the Veteran explicitly and unambiguously expressed his intent to withdraw his appeal in connection with the claim for entitlement to service connection for hypertension. 4. On a May 2020 VA Form 9, Appeal to the Board, the Veteran explicitly and unambiguously expressed his intent to withdraw his appeal in connection with the claim for entitlement to service connection for enlarged heart with chest pain and abnormal EKG, to include as secondary to hypertension. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to service connection for a lumbar spine disability, to include pain on the right side, by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of the claim for entitlement to service connection for headaches, to include as secondary to allergic rhinitis, by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 3. The criteria for withdrawal of the claim for entitlement to service connection for hypertension by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 4. The criteria for withdrawal of the claim for entitlement to service connection for enlarged heart with chest pain and abnormal EKG, to include as secondary to hypertension, by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to July 2003. The Veteran and his spouse, D.B., testified at a videoconference hearing before the undersigned Veteran's Law Judge in August 2017. The Board initially denied the issues of entitlement to service connection for erectile dysfunction and entitlement to SMC based on loss of use of creative organ in a December 2017 decision. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2018 the Court granted a joint motion for remand (JMR), vacating the Board's decision as it relates to these two issues on appeal and remanded the matters for compliance with the instructions in the JMR. Consistent with the JMR, the Board remanded these two issues in April 2019. In the September 2018 Board decision, the Board remanded the issues of entitlement to service connection for a left shoulder disability, a right shoulder disability, a gastrointestinal disability, and hyperthyroidism with goiter. In October 2019, the Board again remanded the aforementioned disabilities as there was not substantial compliance with the September 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board also notes that the May 2020 VA Form 9 documented that the Veteran was requesting another videoconference hearing. In October 2020, the Veteran was sent a letter that encouraged the Veteran to schedule a virtual hearing despite his request to have a Travel Board hearing due to the impacts of COVID-19. This letter was sent in error, and the Veteran was notified of this fact in October 2020, but this letter also noted that the claims would be adjudicated, as the Veteran had already had a hearing, despite the May 2020 request for another hearing. In October 2020, the Board sent the Veteran a letter requesting clarification as to whether or not he wanted another hearing. Also, in October 2020, the Veteran called VA and elected to have a virtual hearing. However, in November 2020, the Veteran responded to the October 2020 clarification letter and documented that he was withdrawing his request for a hearing. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). 1. Entitlement to service connection for a lumbar spine disability, to include pain on the right side 2. Entitlement to service connection for headaches, to include as secondary to allergic rhinitis 3. Entitlement to service connection for hypertension 4. Entitlement to service connection for enlarged heart with chest pain and abnormal EKG, to include as secondary to hypertension, 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 (2012). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, in May 2020, the Veteran submitted a statement in writing indicating he wanted to withdraw his appeal as to the claims for service connection for a lumbar spine disability, headaches, hypertension, and an enlarged heart with chest pain and abnormal EKG. Specifically, on the May 2020 VA Form 9, Appeal to the Board of Veterans' Appeals, the Veteran specified that he had read the April 2020 supplemental statement of the case and only wished to appeal the issues remanded herein and that he did not wish to appeal the issues dismissed within this decision at this time. Thus, the Veteran has withdrawn the appeal as it relates to these four claims for service connection. Accordingly, the Board does not have jurisdiction to review the claims for service connection for (1) a lumbar spine disability; (2) headaches; (3) hypertension; and (4) an enlarged heart with chest pain and abnormal EKG, and they are dismissed. REASONS FOR REMAND 5. Entitlement to service connection for erectile dysfunction 6. Entitlement to SMC based on loss of use of creative organ 7. Entitlement to service connection for a left shoulder disability 8. Entitlement to service connection for a left elbow disability 9. Entitlement to service connection for a gastrointestinal disability 10. Entitlement to service connection for hyperthyroidism with goiter, to include as secondary to allergic rhinitis The Board finds an additional remand is necessary as there has not been substantial compliance with the directives from the April 2019 and October 2019 Board remands. Both of these remands directed the AOJ to attempt to obtain Reynolds Army Community Hospital (ACH) treatment records from 2003 to 2008. While it appears that attempts have been made to obtain these records, the records associated with the claims file after each of these attempts contain records from after 2008 only, not from 2003 to 2008 with the exception of a few lab reports from 2003. It remains unclear from the record whether the complete treatment records from 2003 to 2008 are actually available, as there is no documentation in the claims file that these records are unavailable as directed by the October 2019 Board remand. Furthermore, the October 2019 remand directives specifically directed the AOJ to notify the Veteran and his representative if the Reynolds ACH treatment records from 2003 to 2008 were unavailable. The claims file does not contain documentation that such notification was provided. Thus, a remand is necessary to ensure that these records are unavailable, and, if they are unavailable, that this fact is documented in the claims file and that the Veteran is notified of this fact. As to the claim for service connection for a left shoulder disability, the Veteran was provided a VA examination in June 2018 to assess the nature and etiology of the left shoulder disability. The Veteran was diagnosed with a chronic left shoulder disability, and the examiner opined that the "left shoulder strain condition started in 2008, 5 years after military service. His exit exams did not show any abnormality to his shoulders. There is more likely a 50% probability or more tha[t] his shoulder condition is related to causes out of military service. A nexus is not established." The Board finds this opinion is inadequate as the examiner did not provide a rationale for this opinion noting the medical principles and evidence of record that support the opinion. Additionally, the examiner did not address the Veteran's contention that heavy lifting and carrying his ruck sack in service weakened his shoulder. As to the claim for service connection for a left elbow disability, the Veteran was provided a VA examination in June 2018 to assess the nature and etiology of his left elbow disability. The examiner documented that the Veteran did not have a diagnosis of a left elbow disability, though the Veteran reported that he had experienced intermittent pain in the left elbow that radiated into his fingers since he was on active duty. Since that examination, the Veteran reported on his May 2020 VA Form 9 that his job is affected daily because of immobility in his left elbow. He also reported that he was unable to reach and pull heavy equipment. The Veteran reported that he has missed over 48 days of work due to this impairment. Given that the Veteran has asserted that he has functional impairment that may impact his earning capacity, the Board finds another examination is necessary to assess the nature of the disability and provide an opinion as to whether or not the symptomatology reported by the Veteran is at least as likely as not related to his active service. As to the claim for service connection for a gastrointestinal disability, the Veteran was provided a VA examination in June 2018 to assess the nature of the disability. The examiner opined that the Veteran had a history of an anal fissure and symptoms of abdominal pain, blood in his stool, and constipation, but the examiner noted those symptoms had resolved and that there was no current diagnosis of an intestinal conditions. However, the examiner did not address the Veteran's history of GERD. The STRs frequently document abdominal pain, constipation, diarrhea, and gas. Treatment records from Reynolds ACH document recurrent chest pain, reflux that waxes and wanes, and a history of GERD. Thus, the Board finds an examination is necessary to determine if the Veteran's symptoms in service, are at least as likely as not suggestive of an onset of GERD in service or if his current diagnosis of GERD is at least as likely as not related to his active service. The matters are REMANDED for the following action: 1. Confirm whether or not Reynolds ACH records from 2003 to 2008 are available. 2. If Reynolds ACH treatment records from 2003 to 2008 are unavailable, document this unavailability in the claims file. 3. If Reynolds ACH records from 2003 to 2008 are unavailable, notify the Veteran and his representative of the unavailability of these records. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the left shoulder disability is at least as likely as not related to the Veteran's active service, specifically the Veteran's contention that heavy lifting and carrying a ruck sack in service weakened his shoulder. If the clinician finds that an in-person examination is warranted to provide an informed opinion, an examination should be scheduled. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 5. Obtain an addendum opinion from an appropriate clinician regarding whether a left elbow disability is at least as likely as not related to the Veteran's active service. If the clinician finds that an in-person examination is warranted to provide an informed opinion, an examination should be scheduled. The examiner should note any current diagnosis and document any symptomatology. If a diagnosis cannot be provided but the condition manifests in symptoms that cause functional impairment, then the examiner should consider the symptoms a "disability" for the purpose of providing the requested opinion below. Additionally, in considering whether the Veteran has symptoms that manifest with functional impairment, the examiner should note to what extent any documented symptoms are related to the service-connected left carpal/cubital tunnel syndrome, for which the Veteran is already separately service connected, rather than a separate, distinct left elbow disability. The examiner is asked to provide a response to the following: Is the left elbow disability, or any left elbow symptomatology other than that associated with service-connected left carpal/cubital tunnel syndrome, at least as likely as not related to service. The examiner should specifically comment on the Veteran's assertion that carrying and lifting heavy objects, including his ruck sack caused his current symptoms. In providing this opinion, the examiner should also comment on the January 2003 examination and Report of Medical history in which the Veteran reported that he had pain in his left elbow and tingling in his left hand and the examiner documented some reduced strength in the left elbow. See VBMS entry with document type, "STR Medical Photocopy," receipt date 07/30/2014, pp. 7, 10. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 6. Obtain an addendum opinion from an appropriate clinician regarding whether GERD is at least as likely as not related to the Veteran's active service. If the clinician finds that an in-person examination is warranted to provide an informed opinion, an examination should be scheduled. The examiner is asked to provide a response to the following: Is GERD at least as likely as not related to or incurred in service. The examiner should specifically comment on the STRs that document reports in-service symptoms including constipation, gas, and abdominal pain. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Keninger, 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.